In the case of the case, if the guarantor is not required to assume the responsibility of the guarantee during the guarantee period, the guarantee liability is exempted.
Published:
2022-06-08
Recently, a private lending dispute case handled by the author received a second-instance judgment made by the Jinan Intermediate People's Court (hereinafter referred to as the "Jinan Intermediate Court"). The court of first instance in the case ruled that the guarantor of the debt involved in the case was jointly and severally liable for the debt involved in the case. The author filed an appeal on behalf of the guarantor, and the Economic South Intermediate Court heard the trial. The final judgment revoked the first instance judgment, and the guarantor was not required to bear joint and several liability for the debts involved in the case, effectively safeguarding the legitimate rights and interests of the guarantor. Brief of the case On August 20, 2000, a company signed a Repayment (Repayment Guarantee) Agreement with Zheng and Zhang, agreeing that Zheng would lend a loan of 244000 yuan to a company with an annual interest rate of 13% until August 1, 2000. Zhang, as the vice president of the company, signed the agreement as the guarantor of repayment, and promised to "provide unconditional full repayment guarantee for the loan with his family property". At the bottom of the agreement, write "this agreement as an attachment to the original loan contract (No.998060). all parties agree that party B (a company) can repay it in monthly installments at a rate of 10% per month until June 2001", with Zhang's signature attached, but the words "monthly installments at a rate of 10% per month" and "June 2001" have been altered. In August 2021, Zheng filed a lawsuit with a district court in Jinan City, demanding that a company repay the principal and interest, and Zhang bear joint and several liability. Zhang did not appear in court to participate in the proceedings. A district court held that a company should bear the responsibility for repayment in accordance with the contract, and Zhang, as the vice president of the company, promised to provide unconditional full repayment guarantee for the loan with his family property, and should bear joint and several liability with the borrower, and accordingly ruled that Zhang should bear joint and several liability for the debts involved in the case. Zhang refused to accept the judgment of the first instance and entrusted the author to appeal. Grounds of Appeal 1. There are a large number of traces of alteration in the key evidence provided by Zheng in the first instance, and the alteration shall not be used as the basis for the final decision without Zhang's consent; 2, Zhang in this case is joint and several guarantee liability, the agreement did not agree on the guarantee period, and Zheng did not require Zhang to assume the guarantee responsibility within the statutory six-month guarantee period, Zhang's guarantee responsibility has long been exempted; 3, even if the court found that Zhang should bear the responsibility of guarantee, the statute of limitations of the main debt in this case has expired, as a guarantor of Zhang in accordance with the law to enjoy the main debtor's statute of limitations defense, no need to bear the responsibility of guarantee. The focus of the second trial dispute Whether Zhang is jointly and severally liable for the debts involved, I .e. whether Zhang's guarantee has exceeded the guarantee period. case analysis 1. On the issue of altered evidence The handwritten part at the bottom of the agreement, "divided into months at a rate of 10% per month" and "June 2001", was altered without Zhang's consent, and the above altered content is obviously beneficial to Zheng, so it has no legal effect on the above altered. Zhang, as the vice president and guarantor of the company, is deemed to have changed the repayment period of the debt involved in the case, that is, the performance period of the principal debt involved in the case should be "June 2001". 2. The question of whether the guarantee liability has passed the guarantee period. In this case, Zhang assumed joint and several guarantee liability, but the agreement involved in the case did not stipulate the guarantee period. Therefore, the guarantee period for Zhang to bear joint and several liability in this case should be six months after the expiration of the main debt performance period stipulated by law. In this case, Zheng did not provide evidence to prove that he required Zhang to bear the guarantee responsibility within six months from July 1, 2001, and should bear the adverse consequences. Therefore, Zhang's guarantee responsibility has been due to Zheng's failure to make a claim within the guarantee period. Exempt. Referee result After trial, the Jinan Intermediate People's Court revoked the original judgment of first instance that Zhang should bear joint and several liability for repayment, and changed the judgment to reject Zheng's claim against Zhang. Article Link Article 77 of the the People's Republic of China Contract Law "The contract may be changed if the parties agree through consultation. Where laws or administrative regulations stipulate that the modification of a contract shall be subject to approval, registration and other procedures, such provisions shall be followed." Article 78 of the the People's Republic of China Contract Law "If the parties are not clear about the content of the contract change, it is presumed that it has not been changed." Article 24 of the the People's Republic of China Guarantee Law "Where the creditor and the debtor agree to change the main contract, they shall obtain the written consent of the guarantor, and without the written consent of the guarantor, the guarantor shall no longer bear the guarantee liability. If it is otherwise agreed in the guarantee contract, it shall be in accordance with the agreement." Article 26 of the the People's Republic of China Guarantee Law "If the guarantor of joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor shall have the right to require the guarantor to assume the guarantee liability within six months from the date of expiration of the period of performance of the independent debt. If the creditor fails to require the guarantor to assume the guarantee liability during the guarantee period agreed in the contract and the guarantee period specified in the preceding paragraph, the guarantor shall be relieved from the guarantee liability." Lawyer Reminder 1, for creditors, in order to avoid the guarantor out of the insurance, it is necessary to claim the guarantee liability to the guarantor or re-sign the guarantee contract within the guarantee period. 2. For the guarantor, the first is the defense that the guarantee period has passed the guarantee liability has been exempted, and the second is to exercise the defense rights of the principal debtor according to law, including the statute of limitations. 3. After the implementation of the Civil Code, the contents of the main creditor's rights and debts contract shall be changed without the consent of the guarantor, and if the debt is reduced, the guarantor shall still bear the guarantee liability for the changed debt, and if the debt is aggravated, the guarantor shall not bear the guarantee liability for the aggravated part. (Author: Zhang Wenhong)
Recently, a private lending dispute case handled by the author received a second-instance judgment made by the Jinan Intermediate People's Court (hereinafter referred to as the "Jinan Intermediate Court"). The court of first instance in the case ruled that the guarantor of the debt involved in the case was jointly and severally liable for the debt involved in the case. The author filed an appeal on behalf of the guarantor, and the Economic South Intermediate Court heard the trial. The final judgment revoked the first instance judgment, and the guarantor was not required to bear joint and several liability for the debts involved in the case, effectively safeguarding the legitimate rights and interests of the guarantor.
Brief of the case
On August 20, 2000, a company signed a Repayment (Repayment Guarantee) Agreement with Zheng and Zhang, agreeing that Zheng would lend a loan of 244000 yuan to a company with an annual interest rate of 13% until August 1, 2000. Zhang, as the vice president of the company, signed the agreement as the guarantor of repayment, and promised to "provide unconditional full repayment guarantee for the loan with his family property". At the bottom of the agreement, write "this agreement as an attachment to the original loan contract (No.998060). all parties agree that party B (a company) can repay it in monthly installments at a rate of 10% per month until June 2001", with Zhang's signature attached, but the words "monthly installments at a rate of 10% per month" and "June 2001" have been altered.
In August 2021, Zheng filed a lawsuit with a district court in Jinan City, demanding that a company repay the principal and interest, and Zhang bear joint and several liability. Zhang did not appear in court to participate in the proceedings. A district court held that a company should bear the responsibility for repayment in accordance with the contract, and Zhang, as the vice president of the company, promised to provide unconditional full repayment guarantee for the loan with his family property, and should bear joint and several liability with the borrower, and accordingly ruled that Zhang should bear joint and several liability for the debts involved in the case.
Zhang refused to accept the judgment of the first instance and entrusted the author to appeal.
Grounds of Appeal
1. There are a large number of traces of alteration in the key evidence provided by Zheng in the first instance, and the alteration shall not be used as the basis for the final decision without Zhang's consent;
2, Zhang in this case is joint and several guarantee liability, the agreement did not agree on the guarantee period, and Zheng did not require Zhang to assume the guarantee responsibility within the statutory six-month guarantee period, Zhang's guarantee responsibility has long been exempted;
3, even if the court found that Zhang should bear the responsibility of guarantee, the statute of limitations of the main debt in this case has expired, as a guarantor of Zhang in accordance with the law to enjoy the main debtor's statute of limitations defense, no need to bear the responsibility of guarantee.
The focus of the second trial dispute
Whether Zhang is jointly and severally liable for the debts involved, I .e. whether Zhang's guarantee has exceeded the guarantee period.
case analysis
1. On the issue of altered evidence
The handwritten part at the bottom of the agreement, "divided into months at a rate of 10% per month" and "June 2001", was altered without Zhang's consent, and the above altered content is obviously beneficial to Zheng, so it has no legal effect on the above altered. Zhang, as the vice president and guarantor of the company, is deemed to have changed the repayment period of the debt involved in the case, that is, the performance period of the principal debt involved in the case should be "June 2001".
2. The question of whether the guarantee liability has passed the guarantee period.
In this case, Zhang assumed joint and several guarantee liability, but the agreement involved in the case did not stipulate the guarantee period. Therefore, the guarantee period for Zhang to bear joint and several liability in this case should be six months after the expiration of the main debt performance period stipulated by law. In this case, Zheng did not provide evidence to prove that he required Zhang to bear the guarantee responsibility within six months from July 1, 2001, and should bear the adverse consequences. Therefore, Zhang's guarantee responsibility has been due to Zheng's failure to make a claim within the guarantee period. Exempt.
Referee result
After trial, the Jinan Intermediate People's Court revoked the original judgment of first instance that Zhang should bear joint and several liability for repayment, and changed the judgment to reject Zheng's claim against Zhang.
Article Link
Article 77 of the the People's Republic of China Contract Law "The contract may be changed if the parties agree through consultation. Where laws or administrative regulations stipulate that the modification of a contract shall be subject to approval, registration and other procedures, such provisions shall be followed."
Article 78 of the the People's Republic of China Contract Law "If the parties are not clear about the content of the contract change, it is presumed that it has not been changed."
Article 24 of the the People's Republic of China Guarantee Law "Where the creditor and the debtor agree to change the main contract, they shall obtain the written consent of the guarantor, and without the written consent of the guarantor, the guarantor shall no longer bear the guarantee liability. If it is otherwise agreed in the guarantee contract, it shall be in accordance with the agreement."
Article 26 of the the People's Republic of China Guarantee Law "If the guarantor of joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor shall have the right to require the guarantor to assume the guarantee liability within six months from the date of expiration of the period of performance of the independent debt. If the creditor fails to require the guarantor to assume the guarantee liability during the guarantee period agreed in the contract and the guarantee period specified in the preceding paragraph, the guarantor shall be relieved from the guarantee liability."
Lawyer Reminder
1, for creditors, in order to avoid the guarantor out of the insurance, it is necessary to claim the guarantee liability to the guarantor or re-sign the guarantee contract within the guarantee period.
2. For the guarantor, the first is the defense that the guarantee period has passed the guarantee liability has been exempted, and the second is to exercise the defense rights of the principal debtor according to law, including the statute of limitations.
3. After the implementation of the Civil Code, the contents of the main creditor's rights and debts contract shall be changed without the consent of the guarantor, and if the debt is reduced, the guarantor shall still bear the guarantee liability for the changed debt, and if the debt is aggravated, the guarantor shall not bear the guarantee liability for the aggravated part. (Author: Zhang Wenhong)
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