This paper holds that the amount of guarantee and the scope of guarantee are two completely different legal concepts. The amount of guarantee determines the amount of priority creditor's rights, and the scope of guarantee controls the content of priority creditor's rights. The applicable relationship between the two should be that the scope of guarantee must be limited by the amount of guarantee determined in advance. Only by clarifying the above two concepts can the guarantee legal system play its due role.
I introduction: a case
Company A applied for a loan from Bank B with the factory land under the name of Company C. After evaluation, the value of the factory land was 6,543,800+million, and the mortgage rate was 70%. So Bank B lent Company A 7 million (the amount of secured creditor's rights is also the registered amount of mortgage), and agreed with Company C that the scope of mortgage guarantee includes principal, interest, overdue interest, penalty interest and legal fees, and the loan period is one year. After a company went to loans overdue, after litigation, the principal and interest plus litigation costs totaled 7.8 million yuan. Q: (1) How much is the creditor's right of Bank B against Company A? (2) What is the priority of Bank B?
This case shows the most typical operation mode of most commercial banks in China when entrusting mortgage loans. In fact, it is not complicated, and the legal relationship is very clear, that is, the creditor's right of Bank B to Company A is 7.8 million, but the priority right of compensation is only 7 million; In addition, 800,000 yuan can only be used as an ordinary creditor's right, and it cannot be paid in priority from the realized amount of collateral.
However, in the practice of China, banks generally believe that they have the right to receive all the creditor's rights from the realization of collateral. Specific to this case, the creditor's right of Bank B to Company A is 7.8 million, and the priority right of repayment is also 7.8 million. If the bank's above determination is based on its own interests or is not proficient in the law, it can still be understood by us. But surprisingly, the court usually supports the bank's application. The reason for this is really puzzling.