Viewpoint | An analysis of the identification of debt accession and guarantee systems
Published:
2024-04-02
In order to further distinguish between the two systems, promote the development of commercial transactions, and prevent third parties from evading responsibility, it is particularly important to identify debt accession and guarantee systems.
Guarantee and debt join to identify the existence of different views of the situation from time to time, especially in the loan contract dispute. If the commitment issued by the parties is not clear, because of the different responsibilities, for their own interests, the parties will often hold their own words. In the joining of a debt, a third party joins the debt and, together with the original debtor, is jointly liable for the settlement of the debt. In the guarantee system, the general guarantee is supplementary, only in the main debtor can not perform the debt, the guarantor party is liable, relative to the debt to join the liability reduction. We have noticed that the debt accession system is a new legal concept in the Civil Code. Although it has filled some legislative gaps in judicial practice, it is also because of its high similarity with the guarantee system in terms of function and nature, especially debt accession and joint and several liability. In practice, the lack of thorough understanding of these two systems often leads to irregular and uncertain words or expressions, or a malicious vague expression that leaves the transaction in a state of uncertainty. Therefore, in order to further distinguish between the two systems, promote the development of commercial transactions, and prevent third parties from evading responsibility, it is particularly important to identify the two systems.
Implications of 1. debt accession and guarantee regimes
A guarantee is a form of security in which a third party other than the parties to a contract guarantees the full or partial performance of a contractual obligation by the debtor in the contractual relationship to the creditor in the contractual relationship. The forms of guarantee include general guarantee and joint and several liability guarantee. The general guarantee refers to the guarantee that the parties agree in the guarantee contract that if the debtor fails to perform the debt, the guarantor shall bear the responsibility for the guarantee. Joint and several liability guarantee means that the parties agree in the guarantee contract that the guarantor and the debtor are jointly and severally liable for the debt.
With regard to the accession of debt, also known as the concurrent assumption of debt, refers to the third party and the creditor, the debtor to reach a tripartite agreement or the third party and the creditor to reach a bilateral agreement or the third party to the creditor's unilateral commitment by the third party to perform the debtor's debt, but at the same time does not forgive the debtor to perform the obligation of the debt. Article 552 of the the People's Republic of China Civil Code stipulates: "If a third party agrees with the debtor to join the debt and notifies the creditor, or if the third party expresses its willingness to join the debt to the creditor, and the creditor fails to explicitly refuse within a reasonable period of time, the creditor may request the third party to assume joint and several debts with the debtor within the scope of the debt it is willing to assume." According to this provision, the constituent elements of debt accession mainly include: first, the original debt is legal and valid, which is the basis for a third party to join and share the debt with the original debtor; fourth, the original debtor is not separated from the debt relationship, and after a third party joins the debt, the original debtor should still assume the obligation to perform within the scope of the original debt.
The connection and difference between the 2. debt accession and the guarantee system.
There are many similarities between the debt joining system and the guarantee system, especially the joint and several liability guarantee system. First, both systems can functionally guarantee the realization of claims. Secondly, in terms of liability, both can form a joint and several liability with the debtor to the creditor. Finally, in the way of existence, the two systems can coexist in the same creditor-debtor relationship.
To distinguish between debt accession and guarantee systems, the most important thing is to look at the difference between the two.
First of all,Whether there is a guarantee period limit. Under article 692 of the Civil Code, the guarantee is limited by the guarantee period, which is generally six months. The creditor shall claim the right to the claim during the guarantee period. The purpose is to encourage creditors to actively exercise their rights, to avoid the creditor's failure to exercise its rights and to make the guarantor bear the risk beyond its subordinate position, to improve the efficiency of the transaction and to protect the security of the transaction. If the guarantee period passes, the guarantor is no longer liable for the guarantee. In addition, according to the guarantee system, it is also subject to the limitation of 3 years of litigation. In the case of debt accession, the debt incurred by the debt acceding person from the time of accession is independent, so the debt is subject to the statute of limitations. There is no limit to the so-called guarantee period for debt entry, only the limitation of the statute of limitations, which applies to the ordinary statute of limitations for 3 years.
Secondly,Whether to have a dependent property. The guarantee system has a subordinate nature, subordinate to the main debt, and the debt that the debt accuser has borne from the time of joining the debt is independent. The subordinate attribute of the guaranteed debt means that only when the debtor fails to perform the debt due, the guarantor assumes the responsibility of the guarantee, and the main debt changes, the guaranteed debt changes, the main debt is eliminated, and the guaranteed debt is eliminated. In the case of debt accession, however, the debt entrant is actually creating debt for itself, changing from unburdened debt to a new debtor in an existing debt relationship, and is responsible for its own debt. At the expiration of the period of performance of the debt, since the original debtor and the debtor are jointly and severally liable to the creditor, the creditor may claim the performance of the liability to the original debtor or to the debtor.
And finally,Whether there is a right of recourse. According to Article 700 of the Civil Code, in a guarantee relationship, the guarantor, after assuming the responsibility for the guarantee, has the right to recover from the debtor and has the legal right of recovery. In the case of debt accession, it is not clear in the Civil Code whether the debtor can recover from the original debtor after the debtor has assumed the debt. Some courts have held that the debtor does not have a right of recourse against the original debtor. Some scholars have argued that the debt acceding person, after assuming the debt, has the right of recourse against the original debtor only in excess of his or her share of the debt. It has also been argued that the right of recovery depends on the agreement between the debtor and the original debtor.
Identification Path of 3. Debt Joining and Guarantee System
According to Article 36 of the "Interpretation of the Supreme People's Court on the Application of the Guarantee System of the Civil Code of the the People's Republic of China People's Republic of China": "The third party provides the creditor with similar commitment documents such as balance compensation, liquidity support, etc. as a credit enhancement measure, which has the intention to provide guarantee. If the creditor requests the third party to bear the guarantee responsibility, the people's court shall deal with it in accordance with the relevant provisions of the guarantee. If the commitment document provided by the third party to the creditor has the intention of joining the debt or sharing the debt with the debtor, the people's court shall determine that the debt is joined as stipulated in Article 552 of the Civil Code. If it is difficult to determine whether the commitment document provided by the third party in the preceding two paragraphs is a guarantee or a debt, the people's court shall determine it as a guarantee. If the commitment documents provided by the third party to the creditor do not conform to the provisions of the preceding three paragraphs, and the creditor requests the third party to bear the guarantee liability or joint and several liability, the people's court shall not support it, but it shall not affect its request to the third party to perform the agreed obligations or bear the corresponding civil liability on the basis of the commitment documents."
First of all,The main meaning of the parties. If the promise provided by the third party contains "guarantor, guarantee period, guarantee" and other contents, it shall be presumed that the third party has the intention to provide guarantee and shall be deemed as guarantee. If the third party explicitly proposes "joining the debt, joint debtor, joint repayment with the debtor" and other contents, it shall be deemed that the third party has the intention of joining the debt. Of course, the specific words can be judged in combination with the full text.
For example, in (2023) Guangdong 0605 Minchu Judgment No. 9568, the court held that: on the cause of action in this case. The cause of the plaintiff's request when the case was filed was to guarantee the contract dispute. Although the defendant issued a "guarantee" to the plaintiff, but it does not make a clear agreement on the form of guarantee, guarantee period, guarantee scope, etc., does not conform to the basic elements of the guarantee contract. The defendant considers himself to be a relative of Wu Suxian and voluntarily issues a guarantee to confirm the nature, amount and repayment period of the debt arising from the decoration contract and private loan legal relationship between the plaintiff and Wu Suchuan, which constitutes a debt addition. The plaintiff, as a creditor, can independently choose to claim creditor's rights from the debtor who shall be fully liable for repayment. In summary, the plaintiff's claim to the defendant in this case is in line with the agreement of both parties and does not violate the law. The court determines that the defendant is the debtor of the debt involved in the case based on the existing evidence. Based on the opinions of the plaintiff and the specific circumstances of the actual and disputed legal relationship between the plaintiff and the defendant, the court determined that the cause of the case was the debt joining the dispute and adjusted the rights and obligations of both parties in accordance with relevant laws and regulations.
Secondly,Whether the third person's commitment has a subordinate attribute. In the guarantee relationship, the guarantee debt is the subordinate debt of the main debt and has the subordinate attribute. The guarantor is generally responsible for the difference that the main debtor cannot perform. The third party joined in the debt joining is identical to the debt of the original debtor. After the third party joins the relationship of creditor's rights and debts, it will independently bear the debt, and the amount borne is generally the full amount of the existing debt at the time of joining the debt.
For example, in (2023) Hubei 0982 Minchu Judgment No. 4056, the court held that the correct understanding of this undertaking should be combined with the situation made, the situation and identity of the parties to determine the true meaning of the parties. The letter of commitment was issued by Fan Qingsong on the day Cheng Jianzhong issued the IOU. Fan Qingsong, as a financial officer, has a certain supervision effect on Cheng Jianzhong's behavior and a certain supervision effect on Cheng Jianzhong's repayment. For example, Cheng Jianzhong fails to repay on time and files a public prosecution for embezzlement of public funds. According to the particularity of his position, he can also provide relevant evidence materials to facilitate the company to recover the arrears. Looking at the full text of the undertaking, there is no clear wording throughout the article that can fully show Fan Qingsong's intention to voluntarily assume the debts owed by Cheng Jianzhong to the company. Therefore, it cannot be presumed that "if there is no result" means Cheng Jianzhong has failed to repay, "item" means arrears, and "I am responsible" means Fan Qingsong has made the intention to join the debts. Moreover, the letter of commitment issued by Fan Qingsong was in front of Cheng Jianzhong's criminal judgment was in back, indicating that Cheng Jianzhong had a clear result for failing to repay the company's arrears on time. He was not only investigated for criminal responsibility according to law and ordered to refund the misappropriated funds of 1.254823 million yuan to the hunting company. So far, the hunting company's losses have a clear object to bear.
And finally,When it is difficult to determine whether it is a debt addition or a guarantee, it is presumed to be a guarantee. According to the third paragraph of Article 36 of the Interpretation of the Guarantee System, if it is difficult to determine whether the commitment document provided by the third party in the first two paragraphs is a guarantee or a debt, the people's court shall recognize it as a guarantee. This rule is also known as "the presumption of doubt as a guarantee". If a third party expresses its willingness to perform on behalf of the debtor, it is often unclear whether its meaning is to provide a guarantee or to join the debt.
This provision can be applied to the presumption only if it cannot be judged after the interpretation of meaning and there is no formation of subordination of responsibility.
For example, in (2023) Jin 1024 Minchu Judgment No. 2107, the court held that the core dispute in this case lies in whether the nature of the legal responsibility to be borne by Hou is "general liability guarantee" or "debt accession". Debt accession refers to the way in which a third party undertakes to perform the debtor's debts by it, but at the same time does not exempt the debtor from performing the obligations. In the legal relationship of guarantee, the guarantor only assumes the obligation from the debt, which is not necessarily exactly the same as the content of the main debt. In this case, the defendant said that "if a company cannot pay, it will pay in advance", in order to see that the defendant did not clearly mean to join the debt, which does not conform to the situation of joining the debt, therefore, the court does not support the plaintiff's claim.
It is difficult to identify whether the specific behavior in the practical case is the debt joining or the guarantee system, which requires us to analyze the specific case in practice.
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