According to the law, guarantee can be divided into general guarantee and joint liability. If it is a general guarantee, the creditor can only recover from the debtor through litigation first. Only when the debtor's property is still insufficient after the execution, the guarantor will continue to bear the repayment responsibility.
If it is joint and several liability, when the debtor is unable to repay, the creditor may require the guarantor to perform the debt. Once the borrower can't repay the loan and the debt can't be paid off, as a guarantor, we should pay attention to whether the individual can be exempted. Generally speaking, if the guarantee contract is invalid, the guarantor will be partially exempted.
According to Article 687 of the Civil Code, if the parties agree in the suretyship contract that the surety shall bear the suretyship liability when the debtor fails to perform the debt, it is a general suretyship. Therefore, you must think twice before helping others guarantee loans. If the debtor fails to repay the loan, he can protect the legitimate rights and interests of the individual through law.
A secured loan is a loan granted on the condition that a third party provides a corresponding guarantee for the borrower. A guarantee can be a person's guarantee or a thing's guarantee. Personal guarantee refers to the guarantee document issued by an economic entity with repayment ability. When the borrower fails to repay the loan principal and interest, the guarantor shall bear the responsibility of repaying the loan principal and interest.
What if the other party doesn't pay back the secured loan?
If the other party does not return it, a guarantor is needed to return it. If the debtor fails to pay off the mortgaged property provided by the guarantor, the creditor may apply for auction of the mortgaged property provided by the guarantor, and the realized value of the mortgaged property shall be given priority. Where the guarantor provides a guarantee, he shall bear the guarantee liability with all the property of the guarantor.
legal ground
Article 686 of the Civil Code of People's Republic of China (PRC), which came into effect according to 202 1 1.
The guarantee methods include general guarantee and joint liability guarantee.
If the parties have not agreed on the way of guarantee or the agreement is unclear in the guarantee contract, they shall bear the guarantee liability according to the general guarantee.
Article 69 1
The scope of guarantee includes the principal creditor's right and its interest, liquidated damages, damages and the expenses for realizing the creditor's right. Unless otherwise agreed by the parties, such agreement shall prevail.
Article 700
After assuming the suretyship liability, unless otherwise agreed by the parties, the surety shall have the right to recover from the debtor within the scope of its suretyship liability and enjoy the rights of the creditor to the debtor, but it shall not harm the interests of the creditor.
What should I do if I don't repay the guarantor and lender?
If the borrower is unable to repay the loan, and the guarantor has the responsibility and obligation to repay the debt, he shall recover from the borrower after assuming the repayment responsibility. Before the loan is paid off, the guarantor will be restricted by certain loan conditions and the maximum loan amount when borrowing again.
If the lender refuses to repay the loan when it expires, the guarantor shall bear the repayment responsibility.
(1) If the guarantor fails to repay the arrears, he shall be liable for repayment;
(2) The guarantor's overdue repayment or arrears shall be recorded in the credit record of the guarantor in addition to the repayment responsibility;
(3) When applying for a loan during the guarantee period, the bank will comprehensively measure its repayment ability and need to consider repaying the guarantee part, so the loan is less likely to pass;
④ During the guarantee period, the loan is approved, but the loan interest will rise 10%~20% higher than the normal interest.
Legal basis:
Article 692 of the Civil Code stipulates that the guarantee period is the period during which the guarantor undertakes the guarantee responsibility, and there is no suspension, interruption or extension. The creditor and the guarantor may agree on a guarantee period, but if the agreed guarantee period expires before or at the same time as the performance period of the principal debt, it is deemed that there is no agreement; If there is no agreement or the agreement is unclear, the guarantee period shall be six months from the date of expiration of the main debt performance period. Where the creditor and the debtor have not agreed or clearly agreed on the time limit for the performance of the principal debt, the guarantee period shall be counted from the date when the grace period for the creditor to request the debtor to perform the debt expires.
Sometimes loans need a third-party guarantee, and many people will look for their relatives and friends. Then, what if someone guarantees a loan to others and others don't pay it back?
If you guarantee the loan for others and others don't pay it back, the guarantor may need to pay off all the debts on his behalf, because this is the guarantor's responsibility.
Once this happens, for your own benefit, you should urge the other party to repay by various means. If the other party fails to repay the loan, the creditor requires you to repay the loan on his behalf, or you can apply for asking the main lender to mortgage the loan with its own assets, such as real estate, cars and securities.
If you help with the repayment, you should ask the other party to return the arrears to you as soon as possible afterwards, and you can recover them by recourse.
At the same time, it should be noted that if this is the case, you, as a guarantor, may also be implicated in the case that the main lender does not repay the loan, such as being constantly urged and threatened by the lender.
Guarantee a loan for others, what if others don't pay it back?
When helping others to guarantee the loan but others don't pay it back, the guarantor shall urge and help the borrower to complete the repayment. According to the law, guarantee can be divided into general guarantee and joint liability. If it is a general guarantee, the creditor can only recover from the debtor through litigation first. Only when the debtor's property is still insufficient after the execution, the guarantor will continue to bear the repayment responsibility. If it is joint and several liability, when the debtor is unable to repay, the creditor may require the guarantor to perform the debt.
Once the borrower runs away and the debt cannot be paid off, as a guarantor, we should pay attention to whether it can be exempted from liability. Generally speaking, if the guarantee contract is invalid, the guarantor will be partially exempted.
Otherwise, the borrower can't repay the debt on time, and the guarantor of the loan bears the debt of the loan, which is limited to the guarantor's guarantee responsibility.
General liability guarantee
If you sign a general liability guarantee, you have to bear the responsibility, but the responsibility is lighter, because in this case, the guarantor only needs to ensure that the debtor does not perform the supplementary responsibility. Simply put, only when the debtor's property is insufficient to fully pay off the debt, the guarantor will assume the guarantee responsibility.
If a general liability guarantee is signed, if the lender is overdue, the bank (credit cooperative) needs to dispose of all the lender's assets (deposits, wealth management, automobiles, houses, precious metals, etc.). ) first of all. If all the lender's assets are still insufficient to repay the loan principal and interest, then the difference can be recovered from you.
For example, Xiao Zhang borrowed 6,543,800 yuan from the credit union, and you provided a guarantee; The loan is overdue and the bank can't repay it. At this time, banks should give priority to all kinds of assets under Xiao Zhang's name. Assuming that Xiao Zhang's total assets are 700,000 yuan, and the total principal and interest owed by Xiao Zhang is 6,543,800 yuan+0,500 yuan, then you only need to bear the guarantee responsibility of the difference of 350,000 yuan.
Joint and several liability guarantee
If you sign a joint and several liability guarantee, then your responsibility is even more important. When the debtor fails to repay the bank loan within the time limit, then the bank can fully recover from you. After you pay for the debtor, you can recover it yourself.
For example, Xiao Zhang still borrows 6,543,800 yuan from the credit union, and you provide joint liability guarantee; When the loan expires, Xiao did not return the loan to the bank, and the overdue principal and interest was 6,543,800 yuan+0,500 yuan. After the loan expires, the bank can initiate recourse against Xiao Zhang or you, instead of thoroughly handling Xiao Zhang's assets first and then asking you for the difference, as in the general liability guarantee. If your conditions are good, the main direction of the bank will be you, because the speed of recovering money from you will be higher than that of Xiao Zhang. After you bear the debt for Xiao Zhang, the creditor's right of the loan is transferred to you, and you can claim it from Xiao Zhang.
avoid
Generally speaking, it is rarely necessary to sign a guarantee responsibility, but you can apply for exemption under the following individual circumstances:
(1) There is something wrong with the main loan: for example, the loan of Xiao Zhang mentioned above was handled by the bank staff in collusion with Xiao Zhang inside and outside, and the loan materials contained false contents; Or Xiao Zhang does not meet the basic access conditions for loans, and the bank can still issue loans, and so on, you can apply for exemption from the main loan contract.
(2) Non-subjective will to guarantee: the creditors of the contract use fraud, coercion and other means to make the guarantor provide a guarantee against the true meaning. This guarantee is invalid, and the guarantor can be exempted from liability.
(3) The change of the main contract has not been notified to the guarantor: According to Article 24 of China's Guarantee Law, "if the creditor and the debtor agree to change the main contract, they shall obtain the written consent of the guarantor. Without the written consent of the guarantor, the guarantor will no longer bear the guarantee responsibility. Unless otherwise agreed in the guarantee contract, such agreement shall prevail. "
(4) Exceeding the validity period of litigation: Generally speaking, the validity period of the guarantee period ends at six months after the expiration of the main loan contract. If the creditor fails to ask the guarantor to assume the guarantee responsibility after the expiration, the guarantor shall be exempted from the guarantee responsibility. For example, the maturity date of the loan you guaranteed for Xiao Zhang is 20 19 1. If the credit union still undertakes the guarantee responsibility required of you on June 30th, 20th19th, then your guarantee responsibility can be exempted.
Data expansion
legal ground
According to Article 687 of the Civil Code, if the parties agree in the suretyship contract that the surety shall bear the suretyship liability when the debtor fails to perform the debt, it is a general suretyship.
You must think twice when you guarantee a loan for others. If the debtor can't repay the loan, you can protect your legitimate rights and interests through law.
What if the loan is guaranteed by others and others don't pay it back?
The loan is guaranteed by others, and if others fail to repay it, the guarantor shall bear the guarantee responsibility.
In order to ensure the realization of the creditor's rights, the guarantor and the creditor agree that when the debtor fails to perform the due debts or the circumstances agreed by the parties occur, the guarantor will perform the debts or assume the responsibilities.
The guarantee methods include general guarantee and joint liability guarantee.
If the parties have not agreed on the way of guarantee or the agreement is unclear in the guarantee contract, they shall bear the guarantee liability according to the general guarantee.
A, the parties agreed in the guarantee contract, when the debtor fails to perform the debt, the guarantor shall bear the guarantee responsibility, which is a general guarantee.
Except for one of the following circumstances, the guarantor of general guarantee has the right to refuse to undertake the guarantee liability to the creditor before the main contract has been tried or arbitrated and the debtor's property has not been enforced according to law:
(1) The debtor's whereabouts are unknown and there is no property available for execution;
(2) The people's court accepted the bankruptcy case of the debtor;
(3) The creditor has evidence to prove that the debtor's property is insufficient to perform all debts or cannot perform debts;
(4) The Guarantor waives the rights stipulated in this clause in writing.
Two, the parties agreed in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, which is a joint liability guarantee.
When the debtor of joint and several liability guarantee fails to perform the due debt or the circumstances agreed by the parties occur, the creditor may require the debtor to perform the debt, or may require the guarantor to assume the guarantee liability within the scope of its guarantee.
legal ground
Article 68 1 of the Civil Code stipulates that a surety contract is a contract in which the surety and the creditor agree that the surety will perform the debt or assume the responsibility when the debtor fails to perform the due debt or the circumstances agreed by the parties occur.
What should I do if I guarantee someone else's money?
If the money owed to the guarantor is not paid, the guarantor may apply for compulsory execution. The guarantor needs to provide the people with the property status, property clues, the ability of the person subjected to execution to perform debts and the whereabouts of the person subjected to execution. Otherwise, when the people can't find the property of the person subjected to execution, the guarantor may bear the risk of being unable to execute it.
Article 522 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that the debtor shall be liable for breach of contract to the creditor if it performs the debt to the third party, and the debtor fails to perform the debt to the third party or the performance does not conform to the agreement. If the law stipulates or the parties agree that a third party may directly request the debtor to perform the debt, but the third party fails to explicitly refuse within a reasonable period of time, or the debtor fails to perform the debt to the third party or the performance of the debt is not in conformity with the agreement, the third party may request the debtor to bear the liability for breach of contract; The debtor's defense against the creditor may be claimed by a third party.