Viewpoint... The general defense right, exclusive defense right and refusal to perform the provisions and application of the guarantor-the civil code guarantee problem is confusing (II).
Published:
2021-09-15
The Civil Code gives the guarantor the general right of defense, the exclusive right of defense and the right to refuse to perform. The realization of each right has specific conditions. If it is properly exercised, the guarantor's unique rights and interests can be protected. If it is improperly exercised, the guarantor may lose the right of recovery. The creditor may fail to pay off the debt due to the exercise of the aforementioned rights. Therefore, it is necessary to clarify different situations to avoid confusion and legal risks. General right of defense of guarantor Article 20 of the former Security Law stipulates that "the right of defense refers to the right of the debtor to exercise the right of claim against the creditor in accordance with the legal cause when the creditor exercises the claim." This right of defense, whether the debtor exercises it or not, has the right to a separate defense, which is the legal origin of the guarantor's general right of defense. However, it is criticized for emphasizing that the exercise of the right of defense is based on "legal causes", which excludes the agreement between the creditor and the debtor on the existence of autonomy, but whether the main contract or from the contract, the parties can agree on a large number of corresponding rights and obligations, and even special terms. In view of this, article 701 of the Civil Code removes the restriction of "statutory causes. In case one, the debtor of the main contract exercises the right of defense against the creditor, the effect of which is based on the guarantor, even if the guarantor does not defend, the legal consequences of the debtor's claim also apply to the guarantor based on the subordinate nature of the guarantee contract. The guarantor shall be liable for the guarantee to the extent of the debt determined on the basis of the debtor's exercise of the right of defense. Case 2, the debtor of the main contract does not exercise (express or implied waiver) the right of defense, but the guarantee contract has relative independence, which is a guarantee contract concluded with the creditor based on the unilateral will of the debtor or the guarantor, and its relative independence enables the guarantor to still exercise the right of defense belonging to the debtor alone to protect the interests of the guarantor and prevent the debtor from colluding with the creditor to damage the interests of the guarantor; In case three, the debtor of the main contract exercises the right of defense, and the guarantor voluntarily waives the defense. For example, if the debtor sets off part of the debt or the claim exceeds the statute of limitations, but the guarantor still performs the guarantee liability before the set-off or performs the guarantee liability for the debt beyond the statute of limitations, the guarantor's right to recover from the debtor is lost. The creditor may claim the return of the excess of the payment, and the natural debt beyond the statute of limitations shall bear the legal consequences. PROPRIETARY DEFENCES OF GUARANTOR In view of the subordination and relative independence of the guarantee contract, the law gives the guarantor a separate and exclusive right of defense in order to balance the benefits of each method. Scenario 1, from the point of view of the principal contractual obligation, the creditor and the debtor change the principal contractual obligation without the written consent of the guarantor. The guarantor's liability belongs to "more not to bear, less not to make up", that is, to reduce the debt, the guarantor in accordance with the change of the debt to assume the responsibility of the guarantee. It should be reminded that the debt itself has not been changed but only the period of performance, and the guarantor is still liable for the guarantee without the written consent of the guarantor. However, it should be noted that the guarantor's guarantee period remains unchanged, and the guarantor still calculates the guarantee period according to the time agreed in the original contract or stipulated by law. This means that the creditor cannot take it for granted that after the change in the period of performance of the principal obligation, the starting point of the guarantor's guarantee period changes accordingly. This delay in claiming rights to the guarantor, there is a legal risk of the guarantor "de-insured. Case 2, from the creditor's point of view, the creditor transfers all or part of the claim without notifying the guarantor, and the transfer has no legal effect on the guarantor. In particular, when the contract prohibits the transfer of claims, the guarantor is no longer liable to the assignee without the written consent of the guarantor. The original Judicial Interpretation of the Security Law provided for the transfer of the principal claim to a third party, guaranteeing the simultaneous transfer of the claim. This provision results in the guarantor being in a completely passive subordinate state, which is not conducive to rationalizing the security relationship, so the Civil Code adopts the "notice of assignment of claims" rule, otherwise the guarantor has the right to refuse the assignee's claim for liability for the guarantee. However, in the case of a unilateral transfer of a non-transferable claim, the guarantor is exempted from the liability of guarantee, which is a very high legal risk for the creditor and the transferee if the creditor cannot accurately grasp it. But the question is whether the guarantor's guarantee liability will be restored if the assignee returns the prohibited transfer claim to the creditor? The Civil Code does not provide for it and needs further exploration in judicial practice. In case 3, from the perspective of the principal debtor, if the debtor transfers all or part of the debt with the consent of the creditor but without the written consent of the guarantor, the guarantor "waives the guarantee liability" for the transfer of the debt without consent ". The reason for this is that the guarantor's guarantee is based on a special relationship with the debtor, or a guarantee based on a recoverable assessment, and if a change in the debtor would lead to an increase in the associated risk, an imbalance in the guarantor's legal interests could easily lead to acts detrimental to the guarantor's interests. Scenario 4, from the point of view of debt accession, without the consent of the guarantor, a third party joins the debt relationship and becomes a new debtor, and the guarantor cannot refuse to assume the responsibility of the guarantee. The addition of the debt guarantees the realization of the creditor's rights, and whether the third party can truly perform the debt does not increase the guarantor's established guarantee liability. After the guarantor assumes the responsibility of guarantee, in addition to exercising the right of recovery from the original debtor, can the guarantor recover from the new debtor? The Civil Code does not provide for it, and it needs further interpretation in judicial practice. In terms of legal relations, the newly added debtor may be a debt by share or a joint debt, and the corresponding rights and obligations are different, requiring specific analysis of specific issues. Guarantor's right to refuse performance The Civil Code creates a new right for guarantors, the right to refuse performance. The essence of this right is the right to guarantee the performance of the obligation, that is, under certain circumstances (the debtor has the right of set-off or avoidance against the guarantor), the guarantor can resist the creditor's refusal to perform the guarantee obligation without being liable. Case 1, the guarantor's right of refusal based on the right of set-off. From a contractual point of view, the law recognizes statutory (subject matter similar maturing debt) set-off and intended (subject matter heterogeneous) set-off. The Civil Code does not exclude intended set-off here and should therefore apply as well. However, such a right is a temporary suspension of the performance of the guarantee obligation, not an exemption from the guarantee liability. If the debtor exercises the right of set-off or the right of set-off is found to be invalid by law, the guarantor's right to refuse performance is also lost. In case two, the guarantor refuses to perform on the basis of the right of avoidance. The Civil Code establishes the right of revocation to implement the principle of autonomy of the will, and when the parties to the contract (due to fraud, coercion, misunderstanding, etc.) have an act of untrue meaning, the parties are allowed to revoke the act, thus protecting the true will and interests of both parties. Similarly, the right of revocation belongs exclusively to the revocation right holder, and the guarantor cannot take the initiative to replace the right holder to exercise offside, so the Civil Code gives the guarantor the right to relief is the right of temporary refusal to perform, not the exemption from the responsibility of the guarantee. The right of set-off and the right of avoidance are the right of formation, and the exercise of such rights depends entirely on the unilateral intention of the debtor. The guarantor refuses to exercise the right of performance, which is enjoyed by the debtor and is still enjoyed at a particular stage during the exclusion period. That is, at the stage where the debtor is "saved but not used", if the debtor has exercised its rights, the guarantee liability is waived accordingly; if the debtor has removed its rights, the guarantor naturally does not have the right to refuse performance. This provision is based on the fact that the guarantor is given a relief mechanism when the scope of the secured debt is uncertain. Although the guarantor cannot directly exercise the right of set-off or revocation, the Civil Code gives the guarantor the right to perform the defense against the creditor, which is also conducive to the principal debtor and the creditor to finally determine the scope of the secured debt and avoid the litigation burden of serial litigation. In summary, the Civil Code further clarifies the guarantor's general defense right, the exclusive defense right, and creates the guarantor's right to refuse to perform. The exercise of these rights, even staggered, may change the "survival" of the entire secured debt, which is a place of dispute between the parties and cannot be ignored. Furthermore, the Civil Code still needs in-depth discussion on related issues. Welcome to further thinking, collision and communication! (Text/Cheng Law-abiding)
The Civil Code gives the guarantor the general right of defense, the exclusive right of defense and the right to refuse to perform. The realization of each right has specific conditions. If it is properly exercised, the guarantor's unique rights and interests can be protected. If it is improperly exercised, the guarantor may lose the right of recovery. The creditor may fail to pay off the debt due to the exercise of the aforementioned rights. Therefore, it is necessary to clarify different situations to avoid confusion and legal risks.
General right of defense of guarantor
Article 20 of the former Security Law stipulates that "the right of defense refers to the right of the debtor to exercise the right of claim against the creditor in accordance with the legal cause when the creditor exercises the claim." This right of defense, whether the debtor exercises it or not, has the right to a separate defense, which is the legal origin of the guarantor's general right of defense. However, it is criticized for emphasizing that the exercise of the right of defense is based on "legal causes", which excludes the agreement between the creditor and the debtor on the existence of autonomy, but whether the main contract or from the contract, the parties can agree on a large number of corresponding rights and obligations, and even special terms. In view of this, article 701 of the Civil Code removes the restriction of "statutory causes.
Case 1, the debtor of the main contract exercises the right of defense against the creditor,Its effect is based on the guarantor, at which point the legal consequences of the debtor's claim apply equally to the guarantor, even if the guarantor does not defend it, based on the subordinate nature of the guarantee contract. The guarantor shall be liable for the guarantee to the extent of the debt determined on the basis of the debtor's exercise of the right of defense.
Case 2, the debtor of the main contract does not exercise (express or implied waiver) the right of defense,However, the relative independence of the guarantee contract is based on the debtor's entrustment or the guarantor's unilateral will to enter into a guarantee contract with the creditor, and its relative independence allows the guarantor to still exercise the right of defense that belongs to the debtor alone, in order to protect the interests of the guarantor, but also to prevent the debtor and creditors from colluding to harm the interests of the guarantor;
In case three, the debtor of the main contract exercises the right of defense, and the guarantor voluntarily waives the defense.For example, if the debtor sets off part of the debt or the claim exceeds the statute of limitations, but the guarantor still performs the guarantee liability before the set-off or performs the guarantee liability for the debt beyond the statute of limitations, the guarantor's right to recover from the debtor is lost. The creditor may claim the return of the excess of the payment, and the natural debt beyond the statute of limitations shall bear the legal consequences.
PROPRIETARY DEFENCES OF GUARANTOR
In view of the subordination and relative independence of the guarantee contract, the law gives the guarantor a separate and exclusive right of defense in order to balance the benefits of each method.
Scenario 1, from the perspective of the main contract debt,The creditor and the debtor change the principal contractual obligation without the written consent of the guarantor. The guarantor's liability belongs to "more not to bear, less not to make up", that is, to reduce the debt, the guarantor in accordance with the change of the debt to assume the responsibility of the guarantee. It should be reminded that the debt itself has not been changed but only the period of performance, and the guarantor is still liable for the guarantee without the written consent of the guarantor. However, it should be noted that the guarantor's guarantee period remains unchanged, and the guarantor still calculates the guarantee period according to the time agreed in the original contract or stipulated by law. This means that the creditor cannot take it for granted that after the change in the period of performance of the principal obligation, the starting point of the guarantor's guarantee period changes accordingly. This delay in claiming rights to the guarantor, there is a legal risk of the guarantor "de-insured.
Scenario 2, from the creditor's point of viewThe creditor transfers all or part of the claim without notifying the guarantor, and the transfer has no legal effect on the guarantor. In particular, when the contract prohibits the transfer of claims, the guarantor is no longer liable to the assignee without the written consent of the guarantor.
The original Judicial Interpretation of the Security Law provided for the transfer of the principal claim to a third party, guaranteeing the simultaneous transfer of the claim. This provision results in the guarantor being in a completely passive subordinate state, which is not conducive to rationalizing the security relationship, so the Civil Code adopts the "notice of assignment of claims" rule, otherwise the guarantor has the right to refuse the assignee's claim for liability for the guarantee. However, in the case of a unilateral transfer of a non-transferable claim, the guarantor is exempted from the liability of guarantee, which is a very high legal risk for the creditor and the transferee if the creditor cannot accurately grasp it. But the question is whether the guarantor's guarantee liability will be restored if the assignee returns the prohibited transfer claim to the creditor? The Civil Code does not provide for it and needs further exploration in judicial practice.
Scenario 3, from the principal debtor's point of view,If the debtor transfers all or part of the debt with the consent of the creditor, but without the written consent of the guarantor, the guarantor "waives the guarantee liability" for the transfer of the debt without consent ". The reason for this is that the guarantor's guarantee is based on a special relationship with the debtor, or a guarantee based on a recoverable assessment, and if a change in the debtor would lead to an increase in the associated risk, an imbalance in the guarantor's legal interests could easily lead to acts detrimental to the guarantor's interests.
Scenario four, debt joining perspective,Without the consent of the guarantor, a third party joins the debt relationship and becomes a new debtor, and the guarantor cannot refuse to assume the responsibility for the guarantee. The addition of the debt guarantees the realization of the creditor's rights, and whether the third party can truly perform the debt does not increase the guarantor's established guarantee liability. After the guarantor assumes the responsibility of guarantee, in addition to exercising the right of recovery from the original debtor, can the guarantor recover from the new debtor? The Civil Code does not provide for it, and it needs further interpretation in judicial practice. In terms of legal relations, the newly added debtor may be a debt by share or a joint debt, and the corresponding rights and obligations are different, requiring specific analysis of specific issues.
Guarantor's right to refuse performance
The Civil Code creates a new right for guarantors, the right to refuse performance. The essence of this right is the right to guarantee the performance of the obligation, that is, under certain circumstances (the debtor has the right of set-off or avoidance against the guarantor), the guarantor can resist the creditor's refusal to perform the guarantee obligation without being liable.
Case 1, the guarantor's right of refusal based on the right of set-off.
From a contractual point of view, the law recognizes statutory (subject matter similar maturing debt) set-off and intended (subject matter heterogeneous) set-off. The Civil Code does not exclude intended set-off here and should therefore apply as well. However, such a right is a temporary suspension of the performance of the guarantee obligation, not an exemption from the guarantee liability. If the debtor exercises the right of set-off or the right of set-off is found to be invalid by law, the guarantor's right to refuse performance is also lost.
In case two, the guarantor refuses to perform on the basis of the right of avoidance.
The Civil Code establishes the right of revocation to implement the principle of autonomy of the will, and when the parties to the contract (due to fraud, coercion, misunderstanding, etc.) have an act of untrue meaning, the parties are allowed to revoke the act, thus protecting the true will and interests of both parties.
Similarly, the right of revocation belongs exclusively to the revocation right holder, and the guarantor cannot take the initiative to replace the right holder to exercise offside, so the Civil Code gives the guarantor the right to relief is the right of temporary refusal to perform, not the exemption from the responsibility of the guarantee.
The right of set-off and the right of avoidance are the right of formation, and the exercise of such rights depends entirely on the unilateral intention of the debtor. The guarantor refuses to exercise the right of performance, which is enjoyed by the debtor and is still enjoyed at a particular stage during the exclusion period. That is, at the stage where the debtor is "saved but not used", if the debtor has exercised its rights, the guarantee liability is waived accordingly; if the debtor has removed its rights, the guarantor naturally does not have the right to refuse performance. This provision is based on the fact that the guarantor is given a relief mechanism when the scope of the secured debt is uncertain. Although the guarantor cannot directly exercise the right of set-off or revocation, the Civil Code gives the guarantor the right to perform the defense against the creditor, which is also conducive to the principal debtor and the creditor to finally determine the scope of the secured debt and avoid the litigation burden of serial litigation.
In summary, the Civil Code further clarifies the guarantor's general defense right, the exclusive defense right, and creates the guarantor's right to refuse to perform. The exercise of these rights, even staggered, may change the "survival" of the entire secured debt, which is a place of dispute between the parties and cannot be ignored. Furthermore, the Civil Code still needs in-depth discussion on related issues. Welcome to further thinking, collision and communication! (Text/Cheng Law-abiding)
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
