Legal analysis: the loan contract can be changed by both parties through consultation, or it can be changed under legal reasons.
Legal basis: Civil Code of People's Republic of China (PRC).
Article 147 An actor has the right to request the people or an arbitration institution to cancel a civil juristic act based on gross misunderstanding.
Article 148 If a party causes the other party to commit a civil juristic act against its true meaning by fraudulent means, the defrauded party has the right to request the people's court or an arbitration institution to cancel it.
Article 149 If a third party commits a civil juristic act against its true meaning due to fraud, and the other party knows or should know about the fraud, the defrauded party has the right to request the people's court or an arbitration institution to cancel it.
Article 3 If one party or a third party coerces the other party to commit a civil legal act against its true meaning, the coerced party has the right to request the people's court or an arbitration institution to cancel it.
Article 151 If a party takes advantage of a person's danger and lacks judgment, resulting in obviously unfair when a civil juristic act is established, the injured party has the right to request the people's court or an arbitration institution to cancel it.
Article 543 The parties may modify the contract through consultation.
Two, the loan contract changes.
The loan contract is a special well-known contract, and the conditions for its change should follow the general principles of contract change, without special provisions, that is, Article 77 of the Contract Law stipulates: "The parties may change the contract through consultation. If laws and administrative regulations stipulate that the alteration of a contract shall go through the formalities of approval and registration, such provisions shall prevail. "
The elements of a loan contract include the borrower and the borrower, the loan amount, the loan interest rate, the repayment date, the liability for breach of contract, and the way to resolve disputes. Below, we will analyze the loan contract changes under the maximum mortgage guarantee from these aspects.
The subjects of loan contracts are creditors (usually banks and other financial institutions are lenders) and debtors (borrowers). When there is a maximum mortgage guarantee, the mortgagee and the creditor overlap (hereinafter referred to as the creditor), and when there is no third party to provide guarantee or mortgage, the mortgagor and the debtor overlap (hereinafter referred to as the debtor). When the debtor takes another person's property as collateral or a third person as guarantee, the third person is called the mortgagor or guarantor. Therefore, under the assumption that all other conditions remain unchanged, our subject change analysis will independently analyze the influence of each subject change on the creditor's rights risk.
(1) Change of creditors
Creditors assign all their creditor's rights to others because of contract or gift or based on legal provisions, which only produces legal acts that the subject of the debt changes but does not change the content of the debt. Theoretically, according to the different reasons of creditor's rights transfer, it can be divided into creditor's rights transfer and creditor's rights transfer. The transfer of creditor's rights refers to the paid transfer of creditor's rights based on contracts or other forms of agreements; The transfer of creditor's rights refers to the free transfer of creditor's rights based on gift, division and merger of legal person creditors and the inheritance of creditor's rights by the deceased heirs of natural person creditors.
However, in the case of banks as creditors, the reasons for the change of these creditors will basically not appear. Therefore, China's security law has made specific provisions. Although Article 6 1 prohibits the mortgage of the creditor's rights under the main contract from being transferred, since then, the Supreme People's Court's Provisions on Several Issues Concerning the Application of Laws in the Trial of Cases of Acquisition, Management and Disposal of Assets Caused by Non-performing Loans of State-owned Banks (hereinafter referred to as the "Provisions") has made a restrictive interpretation of Article 6 1. Article 2 stipulates that after a financial asset management company receives the creditor's rights of a state-owned bank, the people may bring a lawsuit against the case that has not been concluded by the original creditor's bank before the transfer of the creditor's rights. That is to say, in reality, due to the need of stripping bad assets of banks, creditors of banks can transfer their creditor's rights under certain circumstances. Moreover, Article 8 stipulates that if the original creditor's bank transfers the principal creditor's rights after the people specify the unspecified creditor's rights secured by the maximum mortgage, the transfer of creditor's rights can be deemed effective. Article 9 stipulates that after receiving the creditor's rights secured by mortgage, the asset management company may obtain the mortgage right of the creditor's rights according to law, and the original mortgage registration shall remain valid. It can be seen that after the unspecified creditor's rights secured by the maximum mortgage are specified, when the original creditor's bank transfers the main creditor's rights, it can be considered that the creditor's rights transfer takes effect and the mortgage rights are transferred together. After the unspecified creditor's rights in the maximum mortgage are specified, when the original creditor's bank transfers the principal creditor's rights, it can be considered that the transfer of creditor's rights is effective.
(1) In addition, if the creditor and the debtor reach an agreement through consultation before the maximum mortgage guarantee is determined, a single debt can be legally transferred according to the principle of party autonomy in civil law. Because the maximum mortgage is not subordinate to each specific creditor's right, but to the legal relationship of the basic creditor's right, the transfer of each specific creditor's right only means that the creditor's right is not within the scope guaranteed by the maximum mortgage, but the mortgage right has not been transferred to the transferee, and the amount of the creditor's right is no longer included in the actual total amount of creditor's rights guaranteed by the maximum mortgage. This behavior is essentially a change in the scope of the maximum mortgage guarantee. The scope of secured creditor's rights is determined by the type of basic legal relationship of creditor's rights, so the change of scope essentially means the change of basic legal relationship. Usually this change is manifested as:
(1) Replace the original creditor's rights with a certain creditor's rights;
(2) Adding other types of creditor's rights;
(3) Exclude some creditor's rights from the original creditor's rights;
(4) Specific creditor's rights can also be added.
(1) These changes do not need to obtain the consent of the mortgagee and other third parties, but they must be made before the mortgage is determined, otherwise it will be invalid, and the change registration is the effective requirement of the change. If the parties fail to register the change before the mortgage right is determined, it shall be deemed as unchanged.
(2) Article 204 of the Property Law also recognizes the effectiveness of the transfer of creditor's rights in this law, stipulating that part of the creditor's rights may not be transferred before the creditor's rights secured by the maximum mortgage are determined, unless otherwise agreed by the parties. It can be seen that before determining the maximum amount of mortgage secured creditor's rights, China's laws have changed and held a positive attitude towards the transfer of creditor's rights, and even given some space for the parties to freely agree. However, as banks and other similar financial institutions, different countermeasures should be taken under different conditions:
(1) When signing a contract as a creditor, in order to prevent its own risks, it is better to agree on the transfer method of creditor's rights rather than the maximum mortgage when concluding a maximum mortgage contract, which is more conducive to protecting its own interests;
(2) As a third party, when accepting the assignment of creditor's rights, it shall require the assignment of the maximum mortgage. Therefore, this kind of transfer has been allowed by law, and a third party can request to protect its legitimate rights and interests to the maximum extent according to law.
(2) Changing the debtor
The change of debtors can occur for many reasons, mainly including debt commitment, merger and division of debtors, addition of debtors, withdrawal of a single debtor from multiple debtors, etc. In particular, once a debt commitment occurs, the impact on the maximum mortgage will be different according to different types of debt commitments. In the previous article, the author has made clear the types of debt commitments, namely exemption debt commitments and coexistence debt commitments. On the basis of the creditor's consent, if the pledge of debt relief is to retain the mortgage effect of the maximum mortgage, it must also obtain the consent of the mortgagor, and this consent needs to be fixed through a written contract or a multi-party agreement. Because the debtor's solvency has a great influence on whether the mortgagor finally assumes the debt. However, in the case of co-existing debt commitment, that is, adding new debtors, the guarantee risk of the mortgagor is actually reduced, and it can take effect without its consent in theory.
But in the case of maximum mortgage guarantee, such as
(1) If the debtor and the mortgagor overlap, when the debtor and the third party agree to change the debt commitment, only the creditor's consent is required;
(2) The debtor and the mortgagor overlap. When the creditor and the third party agree to undertake the debt change, if the debtor is still required to bear the guarantee responsibility, although it actually reduces the burden on the debtor and does not need more formalities, its identity as a guarantor will independently exercise its guarantor rights. If it can be removed with its written consent, it will make the whole chain of evidence more complete and rigorous;
(3) Where the debtor is separated from the mortgagor, the written consent of the mortgagor shall be obtained no matter how to assume the debt.
Three, there are several ways to change the loan contract.
In the absence of special provisions, the general principle of contract modification should be followed, that is, Article 77 of the Contract Law stipulates: "The parties may modify the contract through consultation. For those who have gone through the examination and approval registration procedures, this paper analyzes the changes of the loan contract guaranteed by several factors, such as the borrower and the borrower, the loan amount, the loan interest rate, the repayment date, the liability for breach of contract, and the dispute resolution method. The main body of the loan contract is the creditor (usually the lender is a financial institution such as a bank) and the debtor (the borrower), and the creditors overlap (referred to as the mortgagor when providing mortgage). When the debtor takes another person's property as collateral or a third person as guarantee, the third person is called the mortgagor or guarantor. Therefore, under the condition that our master remains unchanged, we will analyze each influence independently. (1) The creditor changes the legal act that the creditor transfers all its creditor's rights to others due to contract, gift or legal provisions, which only leads to the change of the debt subject without changing the debt content. Theoretically, according to the different reasons of creditor's rights transfer, it can be divided into creditor's rights transfer and creditor's rights transfer. The transfer of creditor's rights refers to the paid transfer of creditor's rights based on contracts or other forms of agreements; Transfer of creditor's rights, separation and merger of creditors, inheritance of creditor's rights by the deceased heirs of natural person creditors, etc. However, in the case of banks as creditors, the reasons for the change of these creditors are based on specific regulations. Although article 6 1 has a maximum limit, the Supreme People's Several Issues on Applicable Laws in the Trial of Cases of Asset Acquisition, Management and Disposal Caused by Non-performing Loans of State-owned Banks restricts article 6 1. After the asset management company receives the creditor's rights of the state-owned bank, the people can change the litigation subject to the financial asset management company that transfers the creditor's rights according to the application of the original creditor's bank or the financial asset management company. That is to say, in reality, due to the need of stripping bad assets of banks, creditors of banks can transfer their creditor's rights under certain circumstances. Moreover, article 8 stipulates that the transfer of creditor's rights is effective after the people specify the unspecified creditor's rights secured by the maximum mortgage. Article 9 stipulates that after receiving the creditor's rights secured by mortgage, the asset management company may obtain the mortgage right of the creditor's rights according to law, and the original mortgage registration shall remain valid. It can be seen that the transfer of creditor's rights is effective when the maximum mortgage guarantee is not specific, and the transfer of creditor's rights by the original creditor's bank takes effect after the mortgage exists and the creditor's rights are specific. (1) In addition, before the maximum mortgage guarantee is determined, the business personnel agree to transfer a single debt. According to the provisions of the civil law, because the maximum mortgage is not subordinate to the basic legal relationship of each specific creditor's right, the transfer of each specific creditor's right only means that the creditor's right is not transferred to the assignee together with the maximum mortgage, and within the total amount of actual creditor's rights secured by the debt mortgage, the creditor's right becomes unsecured ordinary debt after the transfer. This behavior is essentially a change in the scope of the maximum mortgage guarantee. The scope of secured creditor's rights is determined by the type of basic legal relationship in which creditor's rights occur, so the change of scope essentially means that the basic change is often manifested as a type of creditor's rights; (2) Adding a certain kind of creditor's rights to other kinds of creditor's rights; (4) Specific creditor's rights can also be added. (1) These changes do not need to obtain the consent of the mortgagee and other third parties, but they must be made before the mortgage is determined, otherwise it will be invalid, and the change registration is the effective requirement of the change. If the parties do not do it before the mortgage is determined, it is considered as no change. (2) Article 204 of the Property Law also recognizes the effectiveness of the transfer of creditor's rights in this law, stipulating that part of the creditor's rights may not be transferred before the creditor's rights secured by the maximum mortgage are determined, unless otherwise agreed by the parties. It can be seen that before determining the maximum amount of mortgage secured creditor's rights, China's laws have changed and held a positive attitude towards the transfer of creditor's rights, and even given some space for the parties to freely agree. However, as banks and other similar financial institutions, different countermeasures should be taken under different identities: (1) When signing a contract as a creditor, it is better to choose the agreed method of creditor's rights transfer rather than the maximum mortgage when concluding a mortgage contract, which is more conducive to protecting their own interests; (2) As a third party, when accepting the assignment of creditor's rights, it shall require the assignment of the maximum mortgage. Therefore, this kind of transfer has been allowed by law, and a third party can request to protect its legitimate rights and interests to the maximum extent according to law. (2) The change of the debtor can occur for a variety of reasons, mainly including debt commitment, merger and division of the debtor, addition of the debtor, withdrawal of a single debtor from multiple debtors, etc. In particular, once a debt commitment occurs, the impact on the maximum mortgage will be different according to different types of debt commitments. In the previous article, the author has made clear the types of debt commitments, namely exemption debt commitments and coexistence debt commitments. On the basis of the creditor's consent, if the pledge of debt relief is to retain the mortgage effect of the maximum mortgage, it must also obtain the consent of the mortgagor, and this consent needs to be fixed through a written contract or a multi-party agreement. Because the debtor's solvency has a great influence on whether the mortgagor finally assumes the debt. However, in the case of co-existing debt commitment, that is, adding new debtors, the guarantee risk of the mortgagor is actually reduced, and it can take effect without its consent in theory. However, in the case of maximum mortgage guarantee, if (1) the debtor and the mortgagor overlap and the debtor and the third party agree to change the debt commitment, only the creditor's consent is required; (2) The debtor and the mortgagor overlap. When the creditor and the third party agree to undertake the debt change, if the debtor is still required to bear the guarantee responsibility, although it actually reduces the burden on the debtor and does not need more formalities, its identity as a guarantor will independently exercise its guarantor rights. If it can be removed with its written consent, it will make the whole chain of evidence more complete and rigorous; (3) Where the debtor is separated from the mortgagor, the written consent of the mortgagor shall be obtained no matter how to assume the debt.
4. After the loan is approved, can the repayment method be changed?
Different banks have different regulations on whether individual mortgage repayment methods can be changed. In addition to matching principal and interest, average capital is also the repayment method of mortgage. With the same loan amount, fixed number of years and interest rate, the total interest of average capital is less than that of average capital. This is also the main reason why many people want to change the repayment method.
Generally speaking, the method of mortgage repayment cannot be changed. Because the personal repayment method was signed at the beginning, it is not easy to change. However, some banks support changing the repayment method, but the procedures are complicated.
Although most banks don't support changing the convenience of mortgage repayment, if an individual has a certain deposit now and has the ability to pay off his mortgage or return part of it in advance, he can apply for early repayment.
The repayment method of mortgage is determined when applying for a loan to buy a house, which is not easy to change, but the regulations of each bank are different, so it is necessary to consult the loan bank.