Don't be careless! In this case, the guarantor will no longer assume the guarantee liability

Borrowers cannot be reached

Holding an IOU signed by the guarantor

I thought I had lent out the money

If there is a guarantor, there is one more guarantee

I didn't expect to sue to the court

Only to find that the guarantee has long passed the guarantee period

Recently, the private lending dispute case concluded by the Fuyang District People's Court of Hangzhou City has given many creditors a big reminder.

Case Review

Borrowing money out of good intentions, the guarantor signs the insurance

A few years ago, Li borrowed 300,000 yuan from Zhao through Wang's introduction for capital turnover, and Zhao thought that there were spare funds at home anyway, so he agreed to lend Li and proposed that Wang provide a guarantee, and Wang readily agreed. On the same day, Li received a loan of 300,000 yuan and issued an IOU, which Wang signed at the guarantor of the IOU. The IOU stipulates: The borrowing period is one year, the interest is calculated according to the monthly interest rate of 1.5%, and Wang Mou provides a joint and several liability guarantee, and the guarantee period is one year after the expiration of the loan period.

Unexpectedly, Li paid interest for two months and lost his voice. Zhao hurriedly inquired about the situation with Wang, and Wang told him that "Li only has a small problem in the temporary capital chain, and it will be good for the bank to lend money down and operate normally", so that he should not be impatient. Zhao Mou thought that Wang Mou was right, and the most unfortunate thing was that Wang Mou provided a guarantee, which was also a double insurance, so he temporarily shelved the matter.

Three years passed in the blink of an eye, watching Li go to the empty building, Zhao hurriedly found Wang again and argued with him, asking him to bear the guarantee responsibility, Wang on the grounds that he was not the main debtor, zhao then sued Both Li and Wang to the Fuyang court.

Court hearings

If there is no reminder during the guarantee period, the guarantee liability will be waived

Wang Mou defended at trial that the loan had exceeded the guarantee period and should be exempted from the guarantee liability. Zhao Mou listened to it and did not fight a bit, obviously he was hindered by his relatives, he lent money to Li, and he was embarrassed to claim rights to Wang at the expiration of the debt performance period, how did it become his own fault now?

After trial, the Fuyang court held that, according to the second paragraph of Article 693 of the Civil Code of the People's Republic of China, "if a creditor with a 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 loan guarantee period in this case is agreed to be one year, starting from the date of expiration of the loan period. Zhao only sued the court after a gap of three years, claiming to Wang that the guarantee liability had exceeded the agreed guarantee period, and Wang was exempted from the guarantee liability accordingly, and now Zhao asked Wang to bear the guarantee liability, which had no basis in law, so the court ruled to reject Zhao's litigation claim against Wang.

After the first-instance judgment, the plaintiff Zhao appealed to the Hangzhou Intermediate People's Court, which rejected the appeal in the second instance and upheld the original judgment.

Judge's Statement

During the guarantee period, it is not careless to urge repayment in a timely manner

From the original intention of the legislation, the guarantor provides a "guarantee" and establishes a guarantee contract, the nature of the contract is a single-service, gratuitous contract, the guarantor does not enjoy the benefits of the contract, and cannot be excessively demanding that it bear excessive responsibility, so a guarantee period system is set up in the civil law legislation to balance the interests of creditors and guarantors.

Many creditors believe that with the guarantor, there is an additional guarantee, and the other party's debt repayment will be foolproof, so it is often impossible to regret not claiming rights against the guarantor during the guarantee period. According to the provisions of the law, the guarantee period is the exclusion period, the exclusion period is fixed and unchanged, there is no suspension, interruption or extension, the guarantee period is agreed in accordance with the agreement, there is no agreement or the agreement is not clear, the guarantee period is six months from the date of expiration of the period for the performance of the main debt. The creditor can only be supported by the court if it claims the guarantee liability against the guarantor within the guarantee period, and if the creditor claims after the guarantee period, the guarantor will no longer bear the guarantee liability.

It should be reminded that even if the guarantor does not raise the defense of exemption from the guarantee liability, the court should take the initiative to examine whether the creditor's claim has exceeded the guarantee period. Therefore, the creditor is careless about the guarantee period, and the repayment should be promptly and retain the necessary supporting materials.

Links to laws

Article 692 of the Civil Code of the People's Republic of China stipulates that the guarantee period is the period during which the guarantor bears the guarantee liability, 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 is earlier than the period for the performance of the main debt or expires at the same time as the period for the performance of the main debt, it shall be deemed that there is no agreement; if there is no agreement or the agreement is unclear, the guarantee period is six months from the date of expiration of the period for the performance of the main debt.

If there is no agreement between the creditor and the debtor on the time limit for the performance of the main debt or the agreement is unclear, the guarantee period shall be calculated from the date on which the creditor requests the debtor to perform the debt.

If the creditor of the joint and several liability guarantee in the second paragraph of Article 693 fails to request the guarantor to bear the guarantee liability during the guarantee period, the guarantor shall no longer bear the guarantee liability.

Interpretation of the Supreme People's Court on the Application of the Relevant Guarantee System

Article 34: When hearing a dispute over a guarantee contract, the people's court shall ascertain as the basic facts of the case, such as whether the guarantee period has expired and whether the creditor exercises its rights in accordance with law during the guarantee period.

If the creditor fails to exercise its rights in accordance with the law during the guarantee period, the guarantee liability shall be extinguished. After the guarantee liability is extinguished, the creditor notifies the guarantor in writing to request to bear the guarantee liability, the guarantor signs, seals or presses the fingerprint on the notice, and the creditor requests the guarantor to continue to bear the guarantee liability, the people's court will not support it, except where the creditor has evidence to prove that a new guarantee contract has been established.

Source: Hangzhou Fuyang District People's Court

Source: Bengbu Inspection