Special provisions on the qualification of guarantor
First, legal persons, other organizations or citizens who have the ability to pay off debts on their behalf can act as guarantors. However, if a legal person, other organization or natural person who does not have full compensation capacity enters into a guarantee contract as a guarantor, the people's court will not support it.
Second, according to the relevant provisions of the General Principles of Civil Law, individual industrial and commercial households and rural contracted households are a special form of citizens. Therefore, citizens as guarantors can also be individual industrial and commercial households and rural contracted households.
Three, can be used as a guarantor, including: registered in accordance with the law to obtain a business license of wholly-owned enterprises, partnerships; A joint venture registered in accordance with the law and obtained a business license; Chinese-foreign contractual joint ventures registered according to law and obtaining business licenses; Social organizations approved and registered by the civil affairs department; Township, street and village-run enterprises that have been approved to register and obtain business licenses.
Fourth, if a branch of an enterprise as a legal person provides a guarantee without the written authorization of the legal person, the guarantee contract is invalid. If the functional department of an enterprise as a legal person provides a guarantee, the guarantee contract is invalid.
Fifth, public institutions and social organizations aiming at public welfare may not act as guarantors. If the institutions and social organizations engaged in business activities are guarantors, and there are no other circumstances that lead to the invalidity of the guarantee contract, the guarantee contract signed by them shall be deemed as valid.
Sixth, in the process of accepting loans from foreign countries or international economic organizations, state organs can act as guarantors with the approval of the State Council. You are not allowed to be a guarantor under other circumstances.
Therefore, before agreeing to be a guarantor, you must understand the following possible consequences.
A) You may be sued.
If the borrower defaults and owes money, the bank or financial company will sue you.
B) You may be declared bankrupt.
If the debt exceeds RMB 30,000, it may be declared bankrupt.
C) multiple guarantors are unsafe.
Don't think that just because you have multiple guarantors, you feel safe. Debt is not necessarily borne equally by multiple guarantors. Banks also don't have to choose to collect debts from richer guarantors. Lenders have the right to choose to collect debts from all or one of the guarantors.
D) death does not mean that the guarantee is exempted.
It depends on what kind of protection it is. In joint and several guarantees involving multiple guarantees, after the death of the guarantor, his legacy can still be used to repay debts. However, if it is only a joint guarantee, its legacy does not need to be used to pay off debts.
Responsibilities and rights of guarantor
Who can be the guarantor?
He/kloc-is over 0/8 years old and is not bankrupt.
Can the guarantor opt out in the future?
This is up to financial institutions to decide. You can ask the guarantor to pay off the debt and terminate the contract. It can also ask a new guarantor to take over. It may not even allow the original guarantor to quit.
When can the guarantor withdraw?
When the loan is paid off. However, if the borrower dies, you are responsible for repaying his debts in installments.
What rights do you have as a guarantor?
According to the guidelines of the central bank, the guarantor has the following rights:
* Can hold the guarantee contract and other related documents.
* As long as the borrower agrees, you can know how much money you have borrowed from financial institutions.
* Can sue the borrower, if necessary, can repay the debt owed to the financial company for the former. The guarantor usually receives a debt collection letter to the borrower.
* Only one specific loan can be guaranteed. If after several years, the borrower wants to increase the loan amount, he must re-apply for the loan, or at least obtain the written consent of the guarantor to provide guarantee for the new loan.
* Unless the borrower defaults and fails to repay the loan, the financial institution can recover the debt from the guarantor.
* Financial institutions must first send a repayment request letter to the guarantor before they can recover the arrears from the guarantor.
(Note: All guarantors should be informed of the above rights, regardless of whether they comply with the Bankruptcy Law 1967 or the Guide for Lending Institutions to Accept Loan Guarantees by the Central Bank. )
Who will the bank sue?
If the borrower defaults and fails to repay, who will the bank recover the debt from-the borrower or the guarantor?
Banks don't have to collect debts from borrowers first. Banks have the right to choose to take legal action against borrowers or guarantors first. You can even recover debts from both parties at the same time.
Legal action can only be taken against the guarantor after legal channels (suing the court and collecting debts from the borrower) have been exhausted.
At: In this case, the financial institution can make the borrower who exceeds RM 30,000 responsible for declaring bankruptcy. The same is true of guarantors, unless they are "social guarantors".
Financial institutions can only sue "social guarantors" and demand to declare them bankrupt after they cannot recover debts from borrowers through various channels.
According to the above law, "social guarantor" refers to the person who guarantees the following loans.
:: Housing loans
:: Awards, grants and loans for education or academic research.
* installment loans for private transportation.
Guarantee contract and guarantee method
1 The guarantor and the creditor may conclude a guarantee contract separately for a single main contract, or within the maximum creditor's rights limit, they may conclude a guarantee contract for a loan contract or a commodity transaction contract that occurs continuously within a certain period.
2. The guarantee contract shall include the following contents:
(1) The type and amount of the secured principal creditor's rights;
(2) The time limit for the debtor to perform the debt;
(3) the method of guarantee;
(4) the scope of guarantee;
(5) Guarantee period;
(six) other matters that both parties think need to be agreed.
If the guarantee contract does not fully comply with the provisions of the preceding paragraph, it may be supplemented.
There are three ways to guarantee:
(1) general guarantee;
(2) Joint and several liability guarantee.
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.
The guarantor of a general guarantee may refuse to undertake the guarantee liability to the creditor before the main contract dispute has been tried or arbitrated and the debtor's property has been enforced according to law.
Under any of the following circumstances, the guarantor shall not exercise the rights specified in the preceding paragraph:
(a) the debtor's domicile has changed, and the creditor has great difficulty in asking him to perform his debts;
(2) The people's court accepts the bankruptcy case of the debtor and suspends the execution procedure;
(3) The guarantor waives the rights stipulated in the preceding paragraph in writing.
If the parties agree in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, it is a joint liability guarantee.
If the debtor of joint and several liability guarantee fails to perform the debt at the expiration of the debt performance period agreed in the main contract, 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.
If the parties have not agreed on the way of guarantee or the agreement is unclear, they shall bear the guarantee liability according to the joint and several liability guarantee.
The guarantor of general guarantee and joint and several liability guarantee enjoys the debtor's right of defense. If the debtor waives the right of defense against the debt, the guarantor still has the right of defense.
The right of defense means that when the creditor exercises his creditor's rights, the debtor objects to the creditor's application according to legal reasons.
Bond obligation
Guarantee law stipulates that
Article 21
The scope of guarantee includes the principal creditor's rights and interest, liquidated damages, damages and expenses for realizing creditor's rights. If there are other provisions in the guarantee contract, such provisions shall prevail.
Where the parties have not agreed on the scope of guarantee or the agreement is unclear, the guarantor shall be liable for all debts.
Article 22
During the guarantee period, if the creditor transfers the principal creditor's rights to a third party according to law, the guarantor shall continue to bear the guarantee responsibility within the original guarantee scope. If there are other provisions in the guarantee contract, such provisions shall prevail.
Article 23
During the guarantee period, if the creditor allows the debtor to transfer the debt, it shall obtain the written consent of the guarantor, and the guarantor shall no longer be liable for the debt transferred without his consent.
Article 24
Where 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. If there are other provisions in the guarantee contract, such provisions shall prevail.
Article 25
Where the guarantor of a general guarantee and the creditor have not agreed on the guarantee period, the guarantee period shall be six months from the expiration of the performance period of the principal debt.
If the creditor fails to bring a lawsuit or apply for arbitration to the debtor during the guarantee period stipulated in the contract and the guarantee period stipulated in the preceding paragraph, the guarantor shall be exempted from the guarantee liability; If the creditor has filed a lawsuit or applied for arbitration, the provisions on interruption of limitation of action shall apply during the guarantee period.
Article 26
If the guarantor of joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor has the right to require the guarantor to assume the guarantee responsibility within six months from the date of expiration of the independent debt performance period.
If the creditor fails to require the guarantor to assume the guarantee responsibility during the guarantee period agreed in the contract and the guarantee period stipulated in the preceding paragraph, the guarantor shall be exempted from the guarantee responsibility.
Article 27
In accordance with the provisions of Article 14 of this Law, the guarantor guarantees continuous creditor's rights. If the guarantee period is not stipulated, the guarantor may notify the creditor in writing to terminate the guarantee contract at any time, but the guarantor shall be liable for the creditor's rights that occurred before notifying the creditor.
Article 28
Where the same creditor's right is secured by two things, the guarantor shall be liable for the creditor's right other than the guarantee of things.
If the creditor waives the property guarantee, the guarantor shall be exempted from the guarantee liability within the scope of the creditor's waiver of rights.
Article 29
If a branch of an enterprise as a legal person enters into a guarantee contract with a creditor without the written authorization of the legal person or beyond the scope of authorization, the contract or the part beyond the scope of authorization is invalid. If the creditor and the enterprise as a legal person are at fault, they shall bear corresponding civil liabilities respectively according to their faults; If the creditor is not at fault, the enterprise as a legal person shall bear civil liability.
Thirtieth any of the following circumstances, the guarantor shall not bear civil liability:
(a) the parties to the main contract collude to defraud the guarantor to provide a guarantee;
(two) the creditor of the main contract uses fraud, coercion and other means to make the guarantor provide a guarantee against the true meaning.
Article 31 A surety shall have the right to recover from the debtor after assuming the suretyship liability.
Article 32
After the people's court accepts the debtor's bankruptcy case, if the creditor fails to declare his creditor's rights, the guarantor may participate in the distribution of bankrupt property and exercise the right of recourse in advance.
Whether private lending can only sue the guarantor before answering this question, we must first distinguish whether the guarantor is a general guarantee or a joint and several liability guarantee.
1. If the guarantor is a general guarantor, according to Article 16 of the Guarantee Law of People's Republic of China (PRC): Article 17: If the parties agree in the guarantee contract that the guarantor shall bear the guarantee responsibility when the debtor fails to perform the debt, it is a general guarantee.
The guarantor of a general guarantee may refuse to undertake the guarantee liability to the creditor before the main contract dispute has been tried or arbitrated and the debtor's property has been enforced according to law.
Under any of the following circumstances, the guarantor shall not exercise the rights specified in the preceding paragraph:
(1) The debtor's domicile has changed, and the creditor has great difficulty in asking him to perform his debts;
(2) The people's court accepts the bankruptcy case of the debtor and suspends the execution procedure;
(3) The guarantor waives the rights stipulated in the preceding paragraph in writing.
For the general guarantor, if the plaintiff only sues the guarantor, the plaintiff's creditor's rights cannot be realized because the guarantor enjoys the right of first appeal.
2. If the guarantor is a joint and several liability guarantee, according to Article 16 of the Guarantee Law of People's Republic of China (PRC): Article 18: If the parties agree in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, it is a joint and several liability guarantee.
If the debtor of joint and several liability guarantee fails to perform the debt at the expiration of the debt performance period agreed in the main contract, 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.
Article 19 If the parties have not agreed on the method of guarantee or the agreement is unclear, they shall bear the guarantee liability according to the joint and several liability guarantee.
According to Article 20 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC), if the debtor who is jointly guaranteed fails to perform the debt at the expiration of the debt performance period agreed in the main contract, the creditor may require the debtor to perform the debt, or may require any guarantor to bear all the guarantee responsibilities.
After the joint and several guarantors assume the guarantee liability, the part that cannot be recovered from the debtor shall be shared by the joint and several guarantors according to the proportion agreed internally. If there is no agreement, it shall be distributed equally.
According to the Supreme People's Court's application
According to the above laws, it can be concluded that the plaintiff can only sue the joint guarantor in the case of joint liability guarantee.
Private lending, the borrower ran away, what about the guarantor? The guarantor has real estate. If the guarantor is jointly and severally liable for guaranty, he shall be jointly and severally liable for repayment of the debt, and then sue the debtor in court after repayment.
Private lending returns money to the guarantor. What if the guarantor runs away? In this case, the debtor can only recover from the guarantor. Of course, the creditor will look for the debtor first, and if the debtor is unable to repay, the creditor will look for the guarantor to bear joint liability.
How to sue the guarantor in private lending litigation? The borrower and the guarantor can be listed as * * * co-defendants, and the guarantor and the borrower are required to bear the repayment responsibility!
Private lending, guarantor, is it legal to be sued? What I have learned about Sunshine Easy Loan: Article 4 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases-If the guarantor provides a joint liability guarantee for the borrower and the lender only sues the borrower, the people's court may not add the guarantor as the defendant; If the lender only sues the guarantor, the people's court may add the borrower as a co-defendant.
Where the guarantor provides a general guarantee for the borrower and the lender only sues the guarantor, the people's court shall add the borrower as a co-defendant; If the lender only sues the borrower, the people's court may not add a guarantor as a co-defendant.
The lender sued the guarantor. Can the guarantor ask to sue the borrower? This can be divided into general guarantee and joint and several liability guarantee. The debtor may not join the joint and several liability guarantee. If it is a general guarantee, the guarantor cannot be added as the defendant without the debtor's repayment in advance.
According to Article 53 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC), if the creditor claims the guarantor and the guarantor's rights in a lawsuit brought by a dispute over the guarantee contract, the people's court shall list the guarantor and the guarantor as * * * co-defendants; If the creditor only sues the guarantor, the people's court shall notify the guarantor to participate in the lawsuit as the defendant, except that the guarantor shall bear joint and several liability in the guarantee contract; If the creditor only sues the guarantor, it may only list the guarantor as the defendant.
That is to say, the creditor can only sue the guarantor (guarantor), but if it is a general guarantee liability, the people's court shall notify the debtor (guarantor) to participate in the litigation as * * *.
The bank sued the guarantor, who couldn't repay the loan. What kind of punishment will the guarantor receive? There is no provision for housing provident fund.
A: After losing the case, the bank will apply to the executive board of the court for enforcement, and the defendant will be included in the "list of untrustworthy executors". And seal up assets such as real estate, vehicles, bank accounts and securities accounts according to law.
The person subjected to dishonesty, commonly known as "Lao Lai", is included in the national list of people subjected to dishonesty, which is equivalent to announcing to the whole society that this person is a dishonest "Lao Lai". As a person who has broken his promise, he is restricted in applying for bank loans, taking a soft berth by plane, and spending a lot of money.
According to "Several Provisions of the Supreme People's Court Municipality on Publishing the Information of the List of Executed Persons with Bad Faith" and "Several Provisions of the Supreme People's Court Municipality on Restricting the High Consumption of Executed Persons", the court enforcement department can impose credit punishment on the executed persons with bad faith, and publish the list of executed persons with bad faith through newspapers, radio, television, internet and court bulletin boards. Notify relevant departments, financial regulatory agencies, financial institutions, institutions undertaking administrative functions, trade associations, etc. , so that the relevant units can punish those who have broken their promises in * * * procurement, bidding, administrative examination and approval, * * support, financing and credit, market access, qualification identification and other aspects.
The people's court can also limit the high consumption of the person who has broken his promise. After being restricted from high consumption, the following acts of paying for expenses with property are not allowed: (1) When taking transportation, choose second-class or above cabins such as airplanes, soft sleeper trains and ships; (two) high consumption in hotels, hotels, nightclubs, golf courses and other places above the star level; (three) the purchase of real estate or new construction, expansion, high-grade decoration of housing; (four) leasing high-grade office buildings, hotels, apartments and other places to work; (5) Purchasing non-essential vehicles; (6) tourism and vacation; (seven) children attending private schools with high fees; (8) Paying high premiums to purchase insurance wealth management products; (nine) other high consumption behaviors that are not necessary for life and work.
The behavior of the person who has broken his promise to consume in violation of the order restricting high consumption belongs to the behavior of refusing to perform the legally effective judgment or ruling of the people's court. If it is verified, it shall be detained and fined in accordance with the provisions of Article 102 of the Civil Procedure Law of People's Republic of China (PRC). If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated according to law.
The guarantor shall bear joint and several liability. If the lender fails to ask for a loan, if the lender has the ability to repay it, the bank will go directly to the lender. If the loan is unable to repay, the bank will ask the guarantor to repay it. In the absence of repayment ability of both parties, the bank will check whether there are any real estate, cars, deposits, etc. In the name of the lender, and if there is, the bank will auction it directly or freeze it. After auctioning the property, the bank will deduct the money owed by the lender and return the rest to the lender. If the lender doesn't have these collateral, it will check whether it has real estate, cars, savings, etc. In the name of the guarantor. If there is, the bank will auction it directly or freeze it. After auctioning the property, the bank will deduct the money owed by the lender and return the rest to the lender. If both parties have no collateral, the bank will sue and decide how to repay the bank's debts according to the actual situation.
The debtor is unable to repay, and the debtor asks the guarantor to pay back the money. The guarantor has a house. Can the court enforce the property of the guarantor? The law of our country stipulates that the debtor has no criminal responsibility. You can't pay your debts for the debtor's food, clothing, housing and transportation, and you can't freeze the debtor to death or starve to death or squat in the street because you pay back the money. Therefore, the house of the debtor and its guarantor cannot be mortgaged. Unless there are more than two houses, one can be enforced.