Viewpoint... Legal analysis of the guarantor's transfer of financial claims.
Published:
2024-07-08
If the guarantor transfers the creditor's rights, the act shall be regarded as the guarantor's responsibility for the guarantee, and the guarantor may recover from the debtor after compensation, or request other guarantors to share the guarantee responsibility within the scope permitted by law, and if the subject of the transfer of the creditor's rights is a bank, the creditor's rights shall not be transferred to the debtor and other interested parties in accordance with the provisions of inter-bank supervision.
Import Case
In 2016, Company B signed a loan contract with Bank A. B borrowed 10 million yuan from Bank A, Company C provided guarantee and Company D provided mortgage guarantee. After the expiration of the contract, Company B failed to fulfill its repayment obligations. After negotiation, Bank A signed a creditor's rights transfer contract with Company C, agreeing that Bank A will transfer its creditor's rights to Company B and the corresponding subordinate rights to Company C, and Company C will pay Bank A the transfer amount of 10 million yuan.
After the establishment of the transfer contract, Company C claimed to Company D that the mortgage was paid first, and Company D did not recognize this, believing that Company C's transfer of the claim was an act of guarantee liability, that the original claim had been eliminated, that the mortgage had been destroyed, and that Company C had no right to claim that the mortgage was paid first, and that Company C sued the people's court.
This paper will make a preliminary legal analysis of the act of the guarantor's transfer of claims involved in this case.
The characterization of the act of 1. guarantor's transfer of creditor's rights.
Before the promulgation of the the People's Republic of China Civil Code, the legal basis for the transfer of creditor's rights was the relevant provisions of the contract law. According to Article 79 of the the People's Republic of China contract law, "the creditor may transfer all or part of the rights of the contract creditor's rights to a third party, except for the circumstances that the nature of the contract creditor's rights may not be transferred, the parties may not be transferred according to the agreement, and the law may not be transferred." The clause does not exclude the guarantor from the "third party", and the regulatory provisions at that time did not explicitly prohibit the creditor from transferring the claim to the guarantor, there is no proviso as expressed in the clause, so the transfer of the claim by Bank A to the guarantor should be valid.
It is undeniable that there were defects in such a system at that time, and it was easy for the guarantor to escape from the debt. After the promulgation of the the People's Republic of China Civil Code and the corresponding judicial interpretation, the law made a new interpretation and definition of this situation, and made a new provision for the guarantor to accept the creditor's rights.
Article 14 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System under the Civil Code of the People's the People's Republic of China of China, which was implemented in January 2021, stipulates that "if two or more third parties provide guarantee for the same debt and the guarantor assigns the claim, the people's court shall determine that the act is liable for the guarantee. If the guarantor of the assigned claim, as a creditor, requests other guarantors to assume the liability for security, the people's court shall not support it; if the guarantor requests other guarantors to share the corresponding share, it shall be dealt with in accordance with the provisions of Article 13 of this interpretation."
This law provides a separate definition of the act of the guarantor's transfer of creditor's rights, thus distinguishing the guarantor's transfer of creditor's rights from the third party's transfer of creditor's rights. The guarantor's transfer of creditor's rights constitutes a guarantee liability in nature, does not belong to the category of creditor's rights transfer, and cannot be transferred simultaneously from the creditor's rights. The relevant provisions on the recovery of the guarantor shall be applied to the claims of the consequences and subsequent rights.
2. legal analysis of the guarantor's right of recovery after the transfer of claims.
The (I) guarantor has the right to recover from the debtor after being assigned the claim.
In order to improve the system of safeguarding the rights of the guarantor after the assignment of the claim, and to avoid its act of compensation being delineated as an act of assignment of the claim, article 700 of the the People's Republic of China Civil Code limits the object of recovery after the guarantor assumes the responsibility for the guarantee.
According to article 700 of the the People's Republic of China Civil Code, after the guarantor has assumed the responsibility for the guarantee, unless otherwise agreed by the parties, it has the right to recover from the debtor within the scope of its responsibility for the guarantee and enjoy the rights of the creditor against the debtor, but not to the detriment of the interests of the creditor. In conjunction with the provisions of article 14 of the judicial interpretation of the security system, the guarantor may, after being granted the claim, claim the claim against the debtor within the scope of its liability and request other guarantors to share the share of the compensation, which shall also be carried out in circumstances limited by law.
If the debtor provides mortgage guarantee for the debt with its own property, according to the second paragraph of Article 18 of the interpretation of the Supreme People's Court on the application of the relevant guarantee system of the the People's Republic of China Civil Code, "the same creditor's right has both the guarantee provided by the debtor itself and the guarantee provided by a third party, and the third party who has assumed the guarantee liability or compensation liability, The people's court shall support it." After the guarantor has paid the debt, it may claim the exercise of the mortgage to the debtor and give priority to the mortgage.
The circumstances in which the (II) guarantor may recover from other guarantors after being transferred to the creditor's rights.
Although the guarantor cannot directly transfer the subordinate rights of the original claim after the transfer of the claim, if there are more than two guarantors, if the debtor is insolvent or insolvent after the payment of a guarantor, the guarantor shall also have the right to recover from the other guarantors under certain circumstances. In this regard, the Interpretation of the Supreme People's Court on the Application of the Guarantee System under the the People's Republic of China Civil Code also provides:
1. If two or more third parties provide guarantees for the same debt, the guarantors agree on mutual recovery and sharing of shares, and the guarantor who has assumed the responsibility for the guarantee requests the other guarantors to share the shares in accordance with the agreement, the people's court shall support it;
2. If the guarantors agree to undertake joint and several joint guarantees, or agree to recover from each other but do not agree to share the share, the guarantors shall share the part that cannot be recovered from the debtor in proportion;
3. If two or more third parties provide guarantee for the same debt, and the guarantors have not agreed on mutual recovery and have not agreed to undertake joint and several joint guarantee, but each guarantor signs, seals or fingerprints on the same contract, and the guarantor who has assumed the guarantee responsibility requests other guarantors to share the part that cannot be recovered from the debtor in proportion, the people's court shall support it;
4. Except in the circumstances specified in the preceding paragraph, the people's court shall not support the request of the guarantor who has assumed the guarantee liability to other guarantors to share the part that cannot be recovered from the debtor.
This article provides for three specific circumstances in which the guarantor may request other guarantors to share the debt after the transfer of the claim, as well as the share of recovery. Except in the above-mentioned cases, the guarantor of the assigned claim shall not have the right to recover from other guarantors. Compared with the exercise of the rights of other third parties after the transfer of claims, the guarantor is different in the object of subrogation/recovery and the amount of subrogation/recovery, which has certain limitations.
Special provisions on the transfer of claims of 3. banks.
As a financial institution, the regulatory requirements for the transfer of its claims are also more stringent. According to the provisions of the second paragraph of the Notice of the Ministry of Finance on Further Strengthening the Financial Management of State-owned Financial Enterprises (No. 87 [2022] of the Ministry of Finance) issued in 2022, "...... the non-performing assets disposed of (including the initial transfer of banks and the subsequent transfer of asset management companies), in addition to the debt restructuring and asset restructuring with the original debtors and stakeholders in accordance with the relevant provisions of the State, it may not be transferred at a discount to interested parties such as the original debtor of the asset and affiliated enterprises......"
The above-mentioned regulatory provisions further restrict the transferee subject of the transfer of bank claims, and the author believes that the transferee subject "the original debtor of the asset and related enterprises and other stakeholders" should include the guarantor of the claim.
4. Conclusion
According to the new legal provisions after the promulgation of the the People's Republic of China Civil Code and the relevant regulatory provisions of the banking industry, if the guarantor transfers the creditor's rights, the act shall be regarded as the guarantor assuming the guarantee responsibility, and the guarantor may recover from the debtor after compensation, or request other guarantors to share the guarantee responsibility within the scope permitted by law. If the subject of creditor's rights transfer is a bank, the creditor's rights shall not be transferred to the debtor and other stakeholders.
For the introduction case, document No. 87 [2022] of Caijin in 2016 has not yet been issued. Although Company C is the guarantor of Bank A's creditor's rights to Company B, there is no clear regulatory document at that time that stipulates that the guarantor should be excluded from the transferee of bank's creditor's rights. Therefore, according to the creditor's rights transfer contract signed by both parties, Company C becomes the qualified transferee of Bank A's creditor's rights according to law and can transfer according to law, the right to recover the collateral of Company D.
After the promulgation of Caijin [2022] No. 87, the regulatory documents stipulate that the creditor's rights shall not be transferred to the guarantor and other stakeholders. The creditor's rights transfer contract between Bank A and Company C violates the prohibitive provisions in Caijin [2022] No. 87, and the creditor's rights transfer behavior may be deemed invalid. The behavior of Company C's transfer of creditor's rights should be defined as the performance of guarantee responsibility, based on the Civil Code and relevant judicial interpretations, it does not have the right to claim the right of first refusal against the collateral of Company D.
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