Viewpoint........................................................................................................
Published:
2021-05-01
Li Ruiqing
Article 700 of the Civil Code provides that after the guarantor has assumed the responsibility for the guarantee, it shall, unless otherwise agreed by the parties, have 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. Compared to the provisions of the original Security Law, the provision on "enjoying the rights of creditors against the debtor, but not to the detriment of the interests of creditors" is a new addition, and I see three different views on the scope of their rights:
Viewpoint 1: The guarantor enjoys all the rights of the creditor against the debtor, including other security interests in the debt relationship.
Viewpoint 2: The guarantor enjoys only the creditor's principal claim against the debtor and does not include subordinate powers such as other security interests.
Viewpoint 3: The uncontroversial scope of "enjoying the creditor's rights against the debtor" mainly includes security interests such as mortgages on the debtor's property, deferred interest or liquidated damages. Delay interest or liquidated damages can be used as the creditor's right to claim the debtor's rights enjoyed by the guarantor because: first, the "creditor's right to the debtor" itself includes delay interest and liquidated damages; second, capital possession has cost. After the guarantor assumes responsibility to the creditor, its capital cost is occupied. Without violating the mandatory provisions such as usury, the guarantor can certainly claim the capital occupation cost from the debtor, that is, interest on delay or liquidated damages. [Interpretation of Civil Code Contracts, Huang Wei/Editor-in-Chief, Rule of Law Publishing House, p. 701]]
The author gives examples of the above three views:
Assume that A (the principal debtor) borrows 10000 from Bank B (the principal creditor) and establishes a mortgage on its house to Bank B, while C acts as a guarantor, and Ding provides the house to set up a mortgage and registers the mortgage. And C, D between not knowing.
If the term A fails to perform, B claims liability to C, and C fails to defend in accordance with article 392 of the Civil Code that "if the debtor provides security in the property itself, the creditor shall first realize the claim on the security of the property" and assume the liability for the guarantee. So how does C claim the right to A and D with respect to the guarantee responsibility it assumes? Three different answers to the aforementioned three views:
Answer to Viewpoint 1: After C is liable, it has acquired all the rights enjoyed by B, including the mortgage, I .e. C may request to exercise the mortgage to A, or to D, or to both A and D.
The problem with this view, however, is that if C merely claims to exercise a mortgage on Ding (or if the value of the collateral provided by A is very small and Ding bears most of the liability), and if it is realized, it actually results in only Ding assuming all (or most of) the liability, while C, as guarantor, is completely "out of the way".
Answer to Viewpoint 2: After C is responsible, he has only obtained the creditor's rights enjoyed by B, and has not obtained the mortgage right to A and D. That is, C to A, D request to exercise the mortgage and can not be realized.
However, the problem with this view is that it is clear that A, as a debtor, is also liable to B as a mortgagor, that B has priority in the payment of the price of A's collateral (articles 410 and 413 of the Civil Code), and that C, as a guarantor, loses the corresponding priority in payment.
Answer to View 3: After C is liable, there is no dispute about obtaining a mortgage on the collateral provided by A; whether to obtain other rights of B as a creditor (including a mortgage on the collateral provided by D) is avoided.
From this, we can see that there are big problems in the above three views. However, the application of <民法典> The provisions of Article 13 of the Interpretation of the Guarantee System (Law Interpretation No. 2020, referred to as the Interpretation of Civil Code Guarantee) have effectively solved the problem, limiting and sublimating the right of subrogation of the guarantor stipulated in Article 700 of the Civil Code, and at the same time bringing to a relatively satisfactory end the long-debated issue of joint guarantee recovery.
Article 13, paragraph 1, of the Civil Code Guarantee Interpretation stipulates that if two or more third parties provide guarantee for the same debt, the guarantors agree on mutual recovery and sharing of shares, and the guarantor who has assumed the guarantee liability requests other guarantors to share the shares in accordance with the agreement, the people's court shall support it; Where the guarantors agree to undertake joint and several joint guarantees, or agree on mutual recovery but do not agree on sharing of shares, each guarantor shares the portion that is not recoverable from the debtor in proportion.
Paragraph 2 stipulates that 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 liability requests other guarantors to share the part that cannot be recovered from the debtor in proportion, the people's court shall support it.
Paragraph 3 provides that, except in the circumstances specified in the preceding two paragraphs, the people's court shall not support the request of the guarantor who has assumed the responsibility for the guarantee to share the part that cannot be recovered from the debtor.
Thus, under the above-mentioned hypothetical circumstances, after C has assumed the responsibility of guarantee, in accordance with article 700 of the Civil Code, it has obtained a mortgage on the collateral provided by A, and its price can be paid in priority.
However, the mortgage of the collateral provided by Ding does not belong to the three legal situations of "mutual recovery and sharing of shares agreed between guarantors", "mutual recovery and sharing of shares agreed between guarantors", "mutual recovery of shares agreed between guarantors" or "signing, sealing or fingerprinting on the same contract", according to the provisions of Article 13 of the Civil Code Guarantee Interpretation, requests will not be supported.
On this issue, the author's pen is still shallow, throwing bricks to attract jade, hoping everyone to correct it.
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
