If the debtor borrows money from the creditor, and the creditor asks the other party to provide security in order to ensure that the creditor's rights can be realized, and the third party provides mortgage security with its own property, does the creditor feel that everything is all right? Does the guarantor feel that he has just signed and patted his chest to provide a guarantee without taking any risk or liability? The analysis of the creditor's rights and debts dispute of Beijing Li Mai lawyer is as follows:
Risks that creditors may face:
First, the mortgage guarantee contract is invalid and the mortgage cannot be realized. There are many circumstances in which a mortgage guarantee contract is invalid, the invalidity of the main contract will lead to the invalidity of the subordinate contract, i.e., the mortgage contract, and malicious collusion, false representation of intent, etc., will also lead to the invalidity of the mortgage contract.
Second, the mortgage has not been registered, resulting in the mortgage not taking effect and the mortgage cannot be exercised. Mortgage registration refers to the statutory authority confirming the mortgage of the mortgage and publicizing the registration, so as to take legal effect. There is no need to go through mortgage registration for a chattel mortgage to take effect, but only the mortgage registration can be used against a third party, that is, the "registration adversarial doctrine" is adopted; The mortgage of immovable property adopts the "effective registration principle", and only the mortgagee can enjoy the mortgage right after the mortgage is registered. In the case of immovable property mortgage, the failure to register the mortgage does not affect the validity of the mortgage contract or mortgage clauses, and the creditor cannot claim rights against the mortgage right, but may pursue the liability of the parties to the contract for breach of contract.
Possible risks faced by the guarantor:
The main risk is that once the debtor is unable to perform its debt obligations, the guarantor will have to bear the guarantee liability to the extent of the property that it has set up as a mortgage to pay off the debt, but it can recover from the debtor after the guarantor assumes the guarantee liability.
Lawyer Li Mai popularizes the law].
Civil Code of the People's Republic of China
Article 388: [Security Contract]To establish a security interest, a security contract shall be concluded in accordance with the provisions of this Law and other laws. Guarantee contracts include mortgage contracts, pledge contracts and other contracts with security functions. The guarantee contract is a subordinate contract of the main creditor's rights and debts. If the principal creditor's rights and debts contract is invalid, the guarantee contract shall be invalid, except as otherwise provided by law.
After the guarantee contract is confirmed to be invalid, if the debtor, guarantor and creditor are at fault, they shall each bear the corresponding civil liability according to their fault. Debt dispute lawyer of 100 assistance plan: can the person subject to enforcement offset the debt by way of creditor's rights transfer?
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