Viewpoint | The determination of the nature of the obligation to make up the difference and the analysis of the rules of judicial application.
Published:
2022-05-14
Introduction In order to ensure the realization of the creditor's claim, it is common for parties outside the contract to provide similar commitment documents such as difference compensation, but there are different understandings in practice as to how the legal nature of such credit enhancement measures should be determined and how relevant disputes should be handled. This paper will combine the relevant cases of the Supreme Law to sort out the nature of the obligation to make up the difference and the thinking of the referee, and analyze the legal liability of the obligation to make up the difference under different circumstances. The concept and classification of the obligation to make up the difference in 1.. The obligation to make up the difference refers to the obligation to make up the difference in order to ensure the relationship between the creditor and the debtor, and to agree that when the debtor fails to perform its obligations in accordance with the agreement or the amount of money is insufficient to pay, the debtor or a third party shall bear the obligation to make up the difference in accordance with the agreement. The obligation to make up the difference can be divided into the debtor's obligation to make up the difference and the third party's obligation to make up the difference according to the subject. Among them, the debtor's obligation to make up the difference is borne by the debtor himself, and the third party's obligation to make up the difference is generally committed by the third party to provide a unilateral commitment letter or sign an agreement with the creditor. Depending on the relationship between the main rights and obligations guaranteed, the obligation to make up the difference can be divided into the difference to make up the debt, the difference to make up the dividend and the difference to make up the collection of funds, of which the most common difference to make up the debt mainly includes the class guarantee type difference to make up and the class debt to join the difference to make up. The judicial point of view of the legal nature of the obligation to make up the difference of 2.. At present, there are mainly the following views on the legal nature of the obligation to make up the difference: one view is that the obligation to make up the difference constitutes the addition of debt, that is, if the parties promise to bear the responsibility for making up the difference as long as the principal and interest of the loan are overdue or in default, it constitutes the addition of debt; the other view is that the obligation to make up the difference constitutes a guarantee, that is, if the contract is, after the contract is, regardless of the form of claim or right of the secured party, the shortfall-making party shall be unconditionally liable for joint and several guarantees. In addition, there are other determinations of a nature such as the obligation to make up the difference constitutes a commitment to pay. The addition of 1. debt. Case: [(2020) Supreme Law Minzong No. 295] Dispute over Loan Contract between Jiangsu jintao Investment Holding Co., Ltd. and Jiangxi Kete Investment Co., Ltd. The court held that the Deficiency Agreement in question had the nature of debt accession. The Deficiency Agreement stipulates that Jin Tao and Zhu Yongning shall unconditionally perform the obligation to make up the difference between the fixed income and principal obtained by Cote Company under the Loan Contract, and Jin Tao and Zhu Yongning shall bear unlimited joint and several liability for the above obligations. The Difference Replenishment Agreement does not expressly stipulate that Jin Tao Company and Zhu Yongning are to provide guarantee for the debts of Yizhou Company under the Loan Contract, and from the agreement of the Difference Replenishment Agreement, the difference replenishment obligation of the difference replenishment person does not have the attribute of debt. Therefore, Jin Tao Company and Zhu Yongning belong to the debt joining, not to the general guarantee. Opinion 2. Guarantee Case: [(2019) Supreme Law Minzong No. 560] Huarong International Trust Co., Ltd. and Kaidi Ecological Environment Technology Co., Ltd. Dispute over Financial Loan Contract The court held that the determination of whether the Contract for Deficiency was a guarantee or a common debt burden should be determined in accordance with the content of the contract. According to the agreement of the "Difference Supplement Contract", the difference supplement liability of Kaidi Ecological Company is based on the fact that the principal debtors Kaidi Energy Company and Kaidi Power Company cannot fulfill their obligations to repay the principal and interest in accordance with the agreement of the "Trust Loan Contract", that is, Kaidi Ecological Company is responsible for the debts of the principal debtors Kaidi Energy Company and Kaidi Power Company. Obviously, the nature of the Deficiency Payment Contract is not a common debt burden but a guarantee. Viewpoint 3. Payment Commitment Case: [(2019) Supreme Law Minzong No. 1524] Dispute between Antong Holding Co., Ltd. and Ankang Business Trust The court held that the obligation to make up the difference refers to: Ankang's interest distribution date under the Trust Contract (including the distribution date of the net income of the trust during the existence of the trust and the distribution date of the trust due), if due to any reason including but not limited to Renjian Company's failure to pay off the principal and interest under the Trust Loan Contract in time and in full, if Ankang fails to obtain the distribution of trust benefits on time and in full according to the 13% annual trust return rate, Guo Dongze shall bear full supplementary responsibility for the difference, including: during the duration of the trust, if Ankang's net trust income according to the Trust Contract fails to reach the 13% annual return rate, Guo Dongze shall make up the difference to Ankang; On the due distribution date of the trust, guo Dongze shall pay Ankang the principal of the trust loan of 0.2 billion yuan, and the difference that has not been made up to the annualized 13% income. Determination of the nature of the obligation to make up the difference in 3. with the Minutes of the Ninth People's Conference "Minutes of the National Court Civil and Commercial Trial Work Conference" (hereinafter referred to as "Minutes of the Nine People's Conference") 91. If the parties outside the trust contract provide similar commitment documents such as third-party balance compensation, performance of due repurchase obligations, liquidity support and other similar commitment documents as credit enhancement measures, the contents of which conform to the provisions of the law on guarantee, the people's court shall determine that a guarantee contractual relationship has been established between the parties. If the content does not conform to the provisions of the law on guarantee, the corresponding rights and obligations shall be determined according to the specific content of the commitment document, and the corresponding civil liability shall be determined according to the facts of the case. For the first time, the "Minutes of the Ninth People's Conference" clarified the nature of the trust credit enhancement measures including the difference compensation agreement in the judicial policy document: if the content of the document meets the provisions on guarantees, it should be recognized as a guarantee contract relationship; its content If it does not conform to the provisions of the guarantee, the corresponding rights and obligations shall be determined according to the specific content of the commitment document, and the corresponding civil liability shall be determined according to the facts of the case. From the point of view of the interpretation of the text, the above rules can be further summarized as: guarantee guarantee priority, independent contract inferior. 4. the nature of the obligation to make up the difference in the Judicial Interpretation of the Guarantee System. Article 25 of the interpretation of the Supreme People's Court on the application of the guarantee system in the the People's Republic of China Civil Code (hereinafter referred to as the "judicial interpretation of the guarantee system"), the parties agree in the guarantee contract that the guarantor shall bear the guarantee liability only when the debtor is unable to perform the debt or is unable to repay the debt, and the people's court shall recognize it as a general guarantee. If the parties agree in the guarantee contract that the guarantor shall bear the guarantee liability when the debtor fails to perform the debt or fails to repay the debt, unconditionally bear the guarantee liability and other similar contents, and do not have the intention that the debtor should bear the responsibility first, the people's court shall recognize it as a joint and several liability guarantee. Article 36 If a third party provides a creditor with similar commitment documents such as shortfall, liquidity support, etc. as a credit enhancement measure, it has the intention to provide security, and if the creditor requests the third party to assume the responsibility for the guarantee, 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 under 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. The Judicial Interpretation of the Guarantee System and the Minutes of the Ninth People's Conference have roughly the same determination of the nature of the obligation to make up the difference, but compared with the Minutes of the Ninth People's Conference, the Judicial Interpretation of the Guarantee System has a broader and clearer scope of application to the determination of the nature of the obligation to make up the difference due to the inclusion of debt in the Civil Code. Specifically, the nature of the obligation to make up the difference is specified in three cases: the first is a guarantee and the second is a debt addition, both of which require a clear indication of meaning in the agreement. When it is not possible to determine whether it is a guarantee or a debt addition on the basis of a deficiency replenishment agreement, it tends to be recognized as a guarantee. However, when it can neither be recognized as a guarantee nor as a debt accession according to the agreement, it should be recognized as belonging to the third case, that is, an independent contractual obligation, and the difference making obligor does not need to bear joint and several liability or guarantee liability, but when the difference making agreement is valid, it still needs to bear the agreed obligations or corresponding civil liability in accordance with the agreement.
Introduction
In order to ensure the realization of the creditor's claim, it is common for parties outside the contract to provide similar commitment documents such as difference compensation, but there are different understandings in practice as to how the legal nature of such credit enhancement measures should be determined and how relevant disputes should be handled. This paper will combine the relevant cases of the Supreme Law to sort out the nature of the obligation to make up the difference and the thinking of the referee, and analyze the legal liability of the obligation to make up the difference under different circumstances.
The concept and classification of the obligation to make up the difference in 1..
The obligation to make up the difference refers to the obligation to make up the difference in order to ensure the relationship between the creditor and the debtor, and to agree that when the debtor fails to perform its obligations in accordance with the agreement or the amount of money is insufficient to pay, the debtor or a third party shall bear the obligation to make up the difference in accordance with the agreement.
The obligation to make up the difference can be divided into the debtor's obligation to make up the difference and the third party's obligation to make up the difference according to the subject. Among them, the debtor's obligation to make up the difference is borne by the debtor himself, and the third party's obligation to make up the difference is generally committed by the third party to provide a unilateral commitment letter or sign an agreement with the creditor. Depending on the relationship between the main rights and obligations guaranteed, the obligation to make up the difference can be divided into the difference to make up the debt, the difference to make up the dividend and the difference to make up the collection of funds, of which the most common difference to make up the debt mainly includes the class guarantee type difference to make up and the class debt to join the difference to make up.
The judicial point of view of the legal nature of the obligation to make up the difference of 2..
At present, there are mainly the following views on the legal nature of the obligation to make up the difference: one view is that the obligation to make up the difference constitutes the addition of debt, that is, if the parties promise to bear the responsibility for making up the difference as long as the principal and interest of the loan are overdue or in default, it constitutes the addition of debt; the other view is that the obligation to make up the difference constitutes a guarantee, that is, if the contract is, after the contract is, regardless of the form of claim or right of the secured party, the shortfall-making party shall be unconditionally liable for joint and several guarantees. In addition, there are other determinations of a nature such as the obligation to make up the difference constitutes a commitment to pay.
The addition of 1. debt.
Case: [(2020) Supreme Law Minzong No. 295] Dispute over Loan Contract between Jiangsu jintao Investment Holding Co., Ltd. and Jiangxi Kete Investment Co., Ltd.
The court held that the Deficiency Agreement in question had the nature of debt accession. The Deficiency Agreement stipulates that Jin Tao and Zhu Yongning shall unconditionally perform the obligation to make up the difference between the fixed income and principal obtained by Cote Company under the Loan Contract, and Jin Tao and Zhu Yongning shall bear unlimited joint and several liability for the above obligations. The Difference Replenishment Agreement does not expressly stipulate that Jin Tao Company and Zhu Yongning are to provide guarantee for the debts of Yizhou Company under the Loan Contract, and from the agreement of the Difference Replenishment Agreement, the difference replenishment obligation of the difference replenishment person does not have the attribute of debt. Therefore, Jin Tao Company and Zhu Yongning belong to the debt joining, not to the general guarantee.
Opinion 2. Guarantee
Case: [(2019) Supreme Law Minzong No. 560] Huarong International Trust Co., Ltd. and Kaidi Ecological Environment Technology Co., Ltd. Dispute over Financial Loan Contract
The court held that the determination of whether the Contract for Deficiency was a guarantee or a common debt burden should be determined in accordance with the content of the contract. According to the agreement of the "Difference Supplement Contract", the difference supplement liability of Kaidi Ecological Company is based on the fact that the principal debtors Kaidi Energy Company and Kaidi Power Company cannot fulfill their obligations to repay the principal and interest in accordance with the agreement of the "Trust Loan Contract", that is, Kaidi Ecological Company is responsible for the debts of the principal debtors Kaidi Energy Company and Kaidi Power Company. Obviously, the nature of the Deficiency Payment Contract is not a common debt burden but a guarantee.
Viewpoint 3. Payment Commitment
Case: [(2019) Supreme Law Minzong No. 1524] Dispute between Antong Holding Co., Ltd. and Ankang Business Trust
The court held that the obligation to make up the difference refers to: Ankang's interest distribution date under the Trust Contract (including the distribution date of the net income of the trust during the existence of the trust and the distribution date of the trust due), if due to any reason including but not limited to Renjian Company's failure to pay off the principal and interest under the Trust Loan Contract in time and in full, if Ankang fails to obtain the distribution of trust benefits on time and in full according to the 13% annual trust return rate, Guo Dongze shall bear full supplementary responsibility for the difference, including: during the duration of the trust, if Ankang's net trust income according to the Trust Contract fails to reach the 13% annual return rate, Guo Dongze shall make up the difference to Ankang; On the due distribution date of the trust, guo Dongze shall pay Ankang the principal of the trust loan of 0.2 billion yuan, and the difference that has not been made up to the annualized 13% income.
Determination of the nature of the obligation to make up the difference in 3. with the Minutes of the Ninth People's Conference
"Minutes of the National Court Civil and Commercial Trial Work Conference" (hereinafter referred to as "Minutes of the Nine People's Conference") 91. If the parties outside the trust contract provide similar commitment documents such as third-party balance compensation, performance of due repurchase obligations, liquidity support and other similar commitment documents as credit enhancement measures, the contents of which conform to the provisions of the law on guarantee, the people's court shall determine that a guarantee contractual relationship has been established between the parties. If the content does not conform to the provisions of the law on guarantee, the corresponding rights and obligations shall be determined according to the specific content of the commitment document, and the corresponding civil liability shall be determined according to the facts of the case.
For the first time, the "Minutes of the Ninth People's Conference" clarified the nature of the trust credit enhancement measures including the difference compensation agreement in the judicial policy document: if the content of the document meets the provisions on guarantees, it should be recognized as a guarantee contract relationship; its content If it does not conform to the provisions of the guarantee, the corresponding rights and obligations shall be determined according to the specific content of the commitment document, and the corresponding civil liability shall be determined according to the facts of the case. From the point of view of the interpretation of the text, the above rules can be further summarized as: guarantee guarantee priority, independent contract inferior.
4. the nature of the obligation to make up the difference in the Judicial Interpretation of the Guarantee System.
Article 25 of the interpretation of the Supreme People's Court on the application of the guarantee system in the the People's Republic of China Civil Code (hereinafter referred to as the "judicial interpretation of the guarantee system"), the parties agree in the guarantee contract that the guarantor shall bear the guarantee liability only when the debtor is unable to perform the debt or is unable to repay the debt, and the people's court shall recognize it as a general guarantee. If the parties agree in the guarantee contract that the guarantor shall bear the guarantee liability when the debtor fails to perform the debt or fails to repay the debt, unconditionally bear the guarantee liability and other similar contents, and do not have the intention that the debtor should bear the responsibility first, the people's court shall recognize it as a joint and several liability guarantee. Article 36 If a third party provides a creditor with similar commitment documents such as shortfall, liquidity support, etc. as a credit enhancement measure, it has the intention to provide security, and if the creditor requests the third party to assume the responsibility for the guarantee, 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 under 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.
The Judicial Interpretation of the Guarantee System and the Minutes of the Ninth People's Conference have roughly the same determination of the nature of the obligation to make up the difference, but compared with the Minutes of the Ninth People's Conference, the Judicial Interpretation of the Guarantee System has a broader and clearer scope of application to the determination of the nature of the obligation to make up the difference due to the inclusion of debt in the Civil Code. Specifically, the nature of the obligation to make up the difference is specified in three cases: the first is a guarantee and the second is a debt addition, both of which require a clear indication of meaning in the agreement. When it is not possible to determine whether it is a guarantee or a debt addition on the basis of a deficiency replenishment agreement, it tends to be recognized as a guarantee. However, when it can neither be recognized as a guarantee nor as a debt accession according to the agreement, it should be recognized as belonging to the third case, that is, an independent contractual obligation, and the difference making obligor does not need to bear joint and several liability or guarantee liability, but when the difference making agreement is valid, it still needs to bear the agreed obligations or corresponding civil liability in accordance with the agreement.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
