Point of view... It is difficult to repay when borrowing money, and it is difficult to collect claims-how to prevent guarantors from "de-insurance" under the new rules of the Civil Code"
Published:
2022-09-13
As the saying goes, "borrow three but not two, and save the emergency but not the poor". All natural and man-made disasters, red and white events, seeing a doctor and studying are the key points in life. They help each other to give timely help, but they do not save the poor. Otherwise, there will be a "rising rice and fighting rice hatred". The rescued party will take it for granted and lose its ability to save itself. In the end, it is difficult to save both sides. There is no shortage of examples around us for the purpose of profit, of course, in legal relations is not limited to borrowing, in practice all kinds of creditor's rights and debt relations are more complex, but the purpose of realizing creditor's rights is the same. Therefore, in order to prevent the debtor from becoming insolvent, a guarantor's guarantee is required, but the guarantor's "de-insurance" makes it difficult to realize the claim. In particular, the new guarantee rules of the Civil Code are not just as simple as presuming to be general guarantees, but if there is no clear ability to identify the various "pits" in the guarantee rules, it is considered absurd, and there will be only bitter tears left. 1. the Civil Code removes the rule that the guarantor of the unclear scope of the guarantee is liable for all debts, the creditor should first clarify the scope of the guarantee liability in the contract, so as to avoid the agreement falling into the pit of "limiting the scope of the guarantee". Article 21 of the former Guarantee Law stipulates that "if the parties do not expressly agree on the scope of the guarantee or the agreement is not clear, the guarantor shall be liable for all debts". However, this provision does not appear again in article 691 of the Civil Code, but lists the scope of the guarantee and provides that "if the parties agree otherwise, they shall agree in accordance with their agreement". Therefore, the rights are handed over to both parties of the guarantee contract again, and the creditor and the guarantor make a clear agreement. For example, if the debtor only assumes the guarantee responsibility for the main creditor's right, he cannot claim other losses to the guarantor. Even if the debtor has the ability to return the principal, the guarantee contract can also limit the scope of the guarantee to "interest, liquidated damages, damages and expenses for realizing the creditor's right". As a creditor, confirm the scope of the guarantor's guarantee and make a clear agreement to avoid disputes and limit the scope of its guarantee. 2. creditors claim their rights beyond the guarantee period, resulting in falling into the "de-insurance" of the guarantor. Article 692 of the Civil Code provides that "the period of guarantee is the period during which the guarantor is determined to assume the responsibility for the guarantee, without suspension, interruption or extension." Creditors can only claim rights to the guarantor within the period of the guarantee, beyond the period of the guarantee that the "de-insurance". The problem is how to determine the beginning and end of the guarantee period, which is more complex in practice. The Civil Code makes new rules to resolve disputes. The creditor and the guarantor may agree on a guarantee period, but the agreement shall meet the legal requirements. If the agreed guarantee period is earlier than or the same as the performance period of the principal debt, it shall be deemed that there is no agreement; what if there is no agreement? The guarantee period at this time is "six months from the expiration date of the performance period of the principal debt"; what if the performance period of the principal debt is unknown. This rule tells creditors to be clear about the scope of the warranty period and to be legally defined. If there is no agreement, it is necessary to look at the agreement on the period of performance of the main debt in the main contract, and if the main contract is also unclear about the period of performance, evidence of the request for performance of the debt from the debtor should be retained, and the guarantee period should be calculated strictly from that date. If the starting point of the guarantee period is calculated incorrectly, resulting in the passage of the guarantee period, the guarantor is "de-insured"! 3. creditors claim rights should distinguish between general guarantees and joint and several liability guarantees, across the "loss of guaranteed claims" pit. In the case of a general guarantee, the liability for the guarantee is incurred only if the creditor sues and the debtor is still unable to repay the debt. Therefore, the creditor needs to bring an action to the debtor during the guarantee period, and the guarantor can be held liable after obtaining an enforcement decision. Here there is the issue of the overlap between the creditor's statute of limitations and the warranty period, which is generally three years, but the warranty period is generally shorter, even six months when the agreement is unclear. Assuming a six-month guarantee period, the creditor files an action on the seventh month of the expiration of the principal obligation, at which point the failure to assert its rights during the guarantee period results in a "de-insurance". Therefore, the Civil Code clearly states: "If the creditor of a general guarantee fails to bring an action or apply for arbitration against the debtor during the period of the guarantee, the guarantor shall no longer be liable for the guarantee." In this regard, creditors can not only rely on the statute of limitations to look at the problem, must first verify the guarantee period, practice can not be ignored, otherwise lead to the loss of rights all lost! This is different in the case of joint and several liability guarantees, and if the period of guarantee and the statute of limitations are confused, it may be argued that since there is joint and several liability, it can be claimed against anyone. For the statute of limitations it will continue, but the guarantee period will not, because it is a constant period. If the creditor of the joint and several liability guarantee fails to claim the guarantee liability to the guarantor within the period of the guarantee, the creditor loses the guarantee claim and "loses the guarantee". That is to say, joint and several liability guarantee, the creditor must have a separate process of claiming rights to the guarantor, and need to strictly follow the guarantee period rather than the statute of limitations period. 4. creditors should distinguish between general guarantees and joint and several liability guarantees, pay attention to the statute of limitations of the guaranteed debt, and avoid the "statute of limitations" pit. The guarantee period and the statute of limitations are different rules, and the two exist at the same time in the guarantee debt, which is easy to confuse. The guarantee period is the period during which the guarantee creditor can claim the guarantee claim. During this period, the creditor's request to the guarantor to assume the guarantee responsibility is the exercise of the first claim for the guarantee debt. If the guarantor refuses to perform the guarantee debt (especially when the joint and several liability guarantee creditor directly requests to perform the guarantee debt), the creditor has the second claim right to guarantee the creditor's right, which is the limitation of action for the guarantee debt. If the creditor exceeds the limitation period, it will lose the possibility that the right to guarantee the claim will be supported by the court, and the same claim cannot be realized. 5. creditors change the main creditor's debt contract without the consent of the guarantor, resulting in a "de-insurance" pit. The original Security Act provided that if the principal debt contract was changed without the consent of the guarantor, the guarantor would no longer be liable for the guarantee. The Civil Code, on the other hand, repeals this rule and adjusts it to the effect that if the debt is mitigated, the guarantor is still liable for the changed debt, and if the debt is aggravated, the guarantor is still liable for the debt to the original extent and is not liable for the aggravated portion. This change actually implements the principle of contract relativity and implements the basic value of protecting claims, because the main contract change is a change in the contract between creditors and debtors, and the guarantee that the two parties to the contract are creditors and guarantors, naturally can not add new obligations to the guarantor outside the main contract, and the obligation can only be reduced but not increased. It should be noted that if the change is made during the performance of the main contract obligation, does it affect the guarantor? Because the change has no effect on the guarantor without the written consent of the guarantor. The calculation of the guarantee period shall still be based on the original contract before the change. The Civil Code provides that "creditors and debtors change the period of performance of the main creditor's debt contract, without the written consent of the guarantor, the period of guarantee shall not be affected." The word "unaffected" has been confirmed. The guarantee period is still calculated according to the original contract. If the creditor changes the performance period with the debtor, but does not obtain the written consent evidence of the guarantor, it is easy to make mistakes in understanding, which will obviously lead to the wrong calculation of the starting point of the guarantee period and the occurrence of "disinsurance" after the guarantee period has passed. This is another big "pit" that creditors can easily ignore "! The above only lists the various pits that creditors are easy to ignore but lead to "de-insurance", but the legal guarantee rules are very complex and controversial, and creditors, debtors and guarantors use different rules to fight each other within their respective scopes. As a creditor is the main contract and guarantee contract witness, a careless loss, the loss is real money, creditors do need legal professionals to help identify, and make full use of legal rules, in order to complete a "thrilling leap", across the "out of insurance" pit!
As the saying goes, "borrow three but not two, and save the emergency but not the poor". All natural and man-made disasters, red and white events, seeing a doctor and studying are the key points in life. They help each other to give timely help, but they do not save the poor. Otherwise, there will be a "rising rice and fighting rice hatred". The rescued party will take it for granted and lose its ability to save itself. In the end, it is difficult to save both sides. There is no shortage of examples around us for the purpose of profit, of course, in legal relations is not limited to borrowing, in practice all kinds of creditor's rights and debt relations are more complex, but the purpose of realizing creditor's rights is the same. Therefore, in order to prevent the debtor from becoming insolvent, a guarantor's guarantee is required, but the guarantor's "de-insurance" makes it difficult to realize the claim. In particular, the new guarantee rules of the Civil Code are not just as simple as presuming to be general guarantees, but if there is no clear ability to identify the various "pits" in the guarantee rules, it is considered absurd, and there will be only bitter tears left.
1. the Civil Code removes the rule that the guarantor of the unclear scope of the guarantee is liable for all debts, the creditor should first clarify the scope of the guarantee liability in the contract, so as to avoid the agreement falling into the pit of "limiting the scope of the guarantee".
Article 21 of the former Guarantee Law stipulates that "if the parties do not expressly agree on the scope of the guarantee or the agreement is not clear, the guarantor shall be liable for all debts". However, this provision does not appear again in article 691 of the Civil Code, but lists the scope of the guarantee and provides that "if the parties agree otherwise, they shall agree in accordance with their agreement". Therefore, the rights are handed over to both parties of the guarantee contract again, and the creditor and the guarantor make a clear agreement. For example, if the debtor only assumes the guarantee responsibility for the main creditor's right, he cannot claim other losses to the guarantor. Even if the debtor has the ability to return the principal, the guarantee contract can also limit the scope of the guarantee to "interest, liquidated damages, damages and expenses for realizing the creditor's right". As a creditor, confirm the scope of the guarantor's guarantee and make a clear agreement to avoid disputes and limit the scope of its guarantee.
2. creditors claim their rights beyond the guarantee period, resulting in falling into the "de-insurance" of the guarantor.
Article 692 of the Civil Code provides that "the period of guarantee is the period during which the guarantor is determined to assume the responsibility for the guarantee, without suspension, interruption or extension." Creditors can only claim rights to the guarantor within the period of the guarantee, beyond the period of the guarantee that the "de-insurance". The problem is how to determine the beginning and end of the guarantee period, which is more complex in practice. The Civil Code makes new rules to resolve disputes.
The creditor and the guarantor may agree on a guarantee period, but the agreement shall meet the legal requirements. If the agreed guarantee period is earlier than or the same as the performance period of the principal debt, it shall be deemed that there is no agreement; what if there is no agreement? The guarantee period at this time is "six months from the expiration date of the performance period of the principal debt"; what if the performance period of the principal debt is unknown.
This rule tells creditors to be clear about the scope of the warranty period and to be legally defined. If there is no agreement, it is necessary to look at the agreement on the period of performance of the main debt in the main contract, and if the main contract is also unclear about the period of performance, evidence of the request for performance of the debt from the debtor should be retained, and the guarantee period should be calculated strictly from that date. If the starting point of the guarantee period is calculated incorrectly, resulting in the passage of the guarantee period, the guarantor is "de-insured"!
3. creditors claim rights should distinguish between general guarantees and joint and several liability guarantees, across the "loss of guaranteed claims" pit.
In the case of a general guarantee, the liability for the guarantee is incurred only if the creditor sues and the debtor is still unable to repay the debt. Therefore, the creditor needs to bring an action to the debtor during the guarantee period, and the guarantor can be held liable after obtaining an enforcement decision. Here there is the issue of the overlap between the creditor's statute of limitations and the warranty period, which is generally three years, but the warranty period is generally shorter, even six months when the agreement is unclear. Assuming a six-month guarantee period, the creditor files an action on the seventh month of the expiration of the principal obligation, at which point the failure to assert its rights during the guarantee period results in a "de-insurance". Therefore, the Civil Code clearly states: "If the creditor of a general guarantee fails to bring an action or apply for arbitration against the debtor during the period of the guarantee, the guarantor shall no longer be liable for the guarantee." In this regard, creditors can not only rely on the statute of limitations to look at the problem, must first verify the guarantee period, practice can not be ignored, otherwise lead to the loss of rights all lost!
This is different in the case of joint and several liability guarantees, and if the period of guarantee and the statute of limitations are confused, it may be argued that since there is joint and several liability, it can be claimed against anyone. For the statute of limitations it will continue, but the guarantee period will not, because it is a constant period. If the creditor of the joint and several liability guarantee fails to claim the guarantee liability to the guarantor within the period of the guarantee, the creditor loses the guarantee claim and "loses the guarantee". That is to say, joint and several liability guarantee, the creditor must have a separate process of claiming rights to the guarantor, and need to strictly follow the guarantee period rather than the statute of limitations period.
4. creditors should distinguish between general guarantees and joint and several liability guarantees, pay attention to the statute of limitations of the guaranteed debt, and avoid the "statute of limitations" pit.
The guarantee period and the statute of limitations are different rules, and the two exist at the same time in the guarantee debt, which is easy to confuse. The guarantee period is the period during which the guarantee creditor can claim the guarantee claim. During this period, the creditor's request to the guarantor to assume the guarantee responsibility is the exercise of the first claim for the guarantee debt. If the guarantor refuses to perform the guarantee debt (especially when the joint and several liability guarantee creditor directly requests to perform the guarantee debt), the creditor has the second claim right to guarantee the creditor's right, which is the limitation of action for the guarantee debt. If the creditor exceeds the limitation period, it will lose the possibility that the right to guarantee the claim will be supported by the court, and the same claim cannot be realized.
5. creditors change the main creditor's debt contract without the consent of the guarantor, resulting in a "de-insurance" pit.
The original Security Act provided that if the principal debt contract was changed without the consent of the guarantor, the guarantor would no longer be liable for the guarantee. The Civil Code, on the other hand, repeals this rule and adjusts it to the effect that if the debt is mitigated, the guarantor is still liable for the changed debt, and if the debt is aggravated, the guarantor is still liable for the debt to the original extent and is not liable for the aggravated portion. This change actually implements the principle of contract relativity and implements the basic value of protecting claims, because the main contract change is a change in the contract between creditors and debtors, and the guarantee that the two parties to the contract are creditors and guarantors, naturally can not add new obligations to the guarantor outside the main contract, and the obligation can only be reduced but not increased.
It should be noted that if the change is made during the performance of the main contract obligation, does it affect the guarantor? Because the change has no effect on the guarantor without the written consent of the guarantor. The calculation of the guarantee period shall still be based on the original contract before the change. The Civil Code provides that "creditors and debtors change the period of performance of the main creditor's debt contract, without the written consent of the guarantor, the period of guarantee shall not be affected." The word "unaffected" has been confirmed. The guarantee period is still calculated according to the original contract. If the creditor changes the performance period with the debtor, but does not obtain the written consent evidence of the guarantor, it is easy to make mistakes in understanding, which will obviously lead to the wrong calculation of the starting point of the guarantee period and the occurrence of "disinsurance" after the guarantee period has passed. This is another big "pit" that creditors can easily ignore "!
The above only lists the various pits that creditors are easy to ignore but lead to "de-insurance", but the legal guarantee rules are very complex and controversial, and creditors, debtors and guarantors use different rules to fight each other within their respective scopes. As a creditor is the main contract and guarantee contract witness, a careless loss, the loss is real money, creditors do need legal professionals to help identify, and make full use of legal rules, in order to complete a "thrilling leap", across the "out of insurance" pit!
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