Government Service Team Huaicheng lawyer
Edit | July
Author | Huaicheng Li Wanchi
Li Wanchi
Liaoning Huaicheng Law Firm
Civil Litigation Corporate Counsel Government Services
In today's increasingly obvious credit economy, the credit relationship between banks and individuals is becoming closer and closer, and the guarantor, as a key player in this relationship, often has its responsibilities and rights become the focus of controversy.
There is a case in the case database of the people's court where the guarantor fell into a credit investigation dilemma because he guaranteed the loan of others.
To a certain extent, the experience reflects the loopholes in the bank's post-loan management and credit management, which needs to be taken seriously.
1
loan
It was found that the credit was bad
On January 20, 2014, Liu XX took out a loan of 100,000 yuan from the defendant Henan Rural Commercial Bank, with a loan term of one year.
On the same day, Wang and Li provided joint and several liability guarantees, and the guarantee period was two years.
After the loan was lent, because Liu had not repaid the loan on time, the rural commercial bank reported the information of Wang's guarantee for the loan to the Credit Information Center of the People's Bank of China and was recorded.
In May 2022, Wang was told by the bank that there was a problem with the credit investigation because he needed a financing loan, and only then did he know that he was included in the credit information center of the People's Bank of China because of the guarantee.
Wang said that from the signing of the contract to the present, a rural commercial bank has not contacted him, nor has he informed that the guarantee information has been reported to the credit information center.
Therefore, Wang sued the court, requesting the court to order that his guarantee liability had been exempted, that the bank should eliminate his bad credit record at the Credit Information Center of the People's Bank of China, restore his reputation, and compensate him with 5,000 yuan in spiritual comfort.
2
Late
No longer assume warranty liability
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After the trial, it was ascertained that during the guarantee period of the loan involved in the case, there was no evidence to prove that the rural commercial bank had claimed guarantee liability against Wang.
The court held that the guarantee contract between Wang and the rural commercial bank was valid, and the bank should claim the guarantee liability from Wang during the two-year guarantee period.
Paragraph 2 of Article 693 of the Civil Code stipulates that if the creditor of the joint and several liability guarantee fails to request the guarantor to bear the guarantee liability during the guarantee period, the guarantor shall no longer bear the guarantee liability.
The rural commercial bank did not claim the guarantee liability against Wang during the guarantee period, and after the expiration of the two-year guarantee period, Wang's guarantee liability was exempted.
Article 16 of the "Regulations on the Administration of the Credit Reporting Industry" stipulates that the retention period for negative personal information by credit reporting establishments is 5 years from the date on which the negative conduct or incident is terminated;
Where it is more than 5 years, it shall be deleted.
Wang's guarantee liability was terminated on January 19, 2017, and according to the above provisions, the plaintiff Wang's personal adverse information records should continue for 5 years from January 20, 2017, and should be deleted after the expiration of the 5-year period, i.e., January 20, 2022.
At present, Wang's negative information records caused by the guarantee behavior involved in the case have not been deleted after the expiration of the statutory time limit, which has brought impact and inconvenience to the plaintiff Wang, and infringed on the lawful rights and interests of the plaintiff Wang.
Therefore, Wang's request for rural commercial banks to eliminate bad records in the personal credit reporting system was established.
The Rural Commercial Bank eliminated Wang's bad information records in the personal credit reporting system, that is, to restore his reputation, and the court ruled that after the bank deleted the bad information records, the petition for the restoration of his reputation was no longer supported.
Because Wang failed to perform his guarantee responsibilities, his bad information was reported and recorded in the personal credit reporting system, which is the legal consequence that he should bear, and the evidence and reasons for Wang's request for compensation of 5,000 yuan for moral damages are insufficient and are not supported.
3
Huaicheng lawyer reminded
In view of the issue of guarantee liability, combined with the court's adjudication rules and practical experience, Huaicheng lawyer reminds:
1. The creditor shall exercise its rights within the guarantee period, and if it fails to exercise its rights during the guarantee period, the guarantor shall no longer bear the guarantee liability.
2. The creditor and the guarantor may agree on the guarantee period, but if there is no agreement or the agreement is not clear, the guarantee period shall be 6 months from the date of expiration of the performance period of the main debt.
3. After the guarantee liability is extinguished, the creditor notifies the guarantor in writing to assume the guarantee liability, and the guarantor does not bear the guarantee liability if he signs, seals or fingerprints on the notice.
However, the creditor has evidence to prove that a new guarantee contract has been established.
If you have more questions about the guarantee dispute, it is recommended to consult a professional lawyer, our law firm also provides online consultation services for lawyers, you are welcome to click the QR code below to provide legal advice anytime and anywhere.
Applicable Law:
Civil Code of the People's Republic of China
Article 694:Where a creditor of a general guarantee files a lawsuit or applies for arbitration against the debtor before the expiration of the guarantee period, the statute of limitations for the guarantee debt shall be calculated from the date on which the guarantor's right to refuse to bear the guarantee liability is extinguished.
Where the creditor of a joint and several liability guarantee requests the guarantor to assume the guarantee liability before the expiration of the guarantee period, the statute of limitations for the guarantee debt shall be calculated from the date on which the creditor requests the guarantor to assume the guarantee liability.
Regulations on the Administration of the Credit Reporting Industry
Article 16: The period for credit reporting establishments to store negative personal information is 5 years from the date on which the negative conduct or incident ends;
During the period for storing negative information, the information subject may make an explanation of the negative information, and the credit reporting establishments shall record it.
Article 26: Where information subjects feel that credit reporting establishments, information providers, or information users have violated their lawful rights and interests, they may make a complaint to the local State Council department for the oversight and management of the credit reporting industry.
The institution accepting the complaint shall promptly conduct verification and handling, and reply in writing to the complainant within 30 days of acceptance.
Where information subjects feel that credit reporting establishments, information providers, or information users have violated their lawful rights and interests, they may directly file a lawsuit in the people's courts.
Case Source:
Henan Runan County People's Court, Wang v. Henan, a rural commercial bank, a financial loan contract dispute, (2022) Yu 1727 Min Chu No. 2523.
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