As the end of the year approaches, many people begin to worry about whether they can get back the money they lent, especially if they do not add a guarantor, I am afraid it will be even more difficult to get it back. However, if there is a guarantor, can the guarantor be found to bear joint and several guarantee liability?
The IOU did not specify who was the borrower and who was the guarantor, and because they were unable to repay the loan, the creditor sued the two to the court together.
On January 17, 2021, Zhang proposed a loan to Qian, and Qian paid 20,000 yuan in cash to Zhang at Sun's home, and Zhang issued an IOU to Qian, which stated: "I borrowed 20,000 yuan from Qian today, and repaid 3% of the interest on time every month."
Mr. Zhang and Mr. Sun successively signed the IOU, but neither of them remarked the words "borrower" or "guarantor". After borrowing, Zhang did not repay the principal and interest after paying the interest for 16 months, so Qian filed a lawsuit, requesting Zhang and Sun to return the loan principal of 20,000 yuan and the agreed interest.
Zhang did not appear in court to participate in the lawsuit, and during the trial, Sun asserted that he signed the IOU as a person present and not as a borrower and guarantor, and Qian admitted that Sun was not a borrower, but a guarantor.
The court heard thatThe focus of the dispute in this case is the issue of whether Sun is the guarantor.
According toArticle 685 of the Civil Code of the People's Republic of ChinaProvisions: The guarantee contract may be a written contract concluded separately or a guarantee clause in the main creditor's rights and debts contract.
If a third party unilaterally gives a guarantee to the creditor in writing, and the creditor accepts it without raising an objection, the guarantee contract is established.
Article 20 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending CasesProvisions: Where another person signs or seals an IOU, receipt, IOU, or other proof of creditor's rights or a loan contract, but does not indicate his identity as a guarantor or bears the guarantee liability, or cannot be presumed to be a guarantor through other facts, and the lender requests that he bear the guarantee liability, the people's court will not support it.
In this case, Qian admitted that Sun was not a borrower, but a guarantor, which was a self-admission, so it could be ruled out that Sun was the borrower, and Zhang was determined to be the borrower in light of Zhang's repayment of interest.
A guarantee contract is a formal contract and must be made in writing. Qian asserted that Sun was the guarantor, but Sun denied it, and the IOU did not indicate that Sun was the "guarantor", and the existing evidence could not prove or presume that Sun was the guarantor, so the court did not find Sun to be the guarantor and bear the guarantee liability.
According toArticle 25 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending CasesIt is stipulated that the interest rate of the loan shall not exceed four times the interest rate of the one-year loan market at the time of the conclusion of the contract, and the borrower and the borrower in this case agreed that the interest rate is too high, and after deducting the interest part, it is decided that Zhang shall repay the principal and interest of Qian's loan in accordance with the law, and reject Qian's litigation claim against Sun.
In the present case, the main question concerned the guarantor. In loan disputes, in addition to issues such as "non-repayment" and "repayment", there are also issues related to the guarantor's guarantee liability.
Because of the guarantee, some people are bankrupt, some people are in prison, can't the guarantee be made?What do I need to pay attention to when making a guarantee?
First, we need to understandWhat are the responsibilities and obligations of the guarantee
According toArticle 686 of the Civil Code of the People's Republic of ChinaIt is stipulated that the forms of guarantee include general warranty and joint and several liability guarantee.
If the parties do not agree on the form of guarantee in the guarantee contract or the agreement is not clear, they shall bear the guarantee liability in accordance with the general guarantee.
General warrantyIt means that when the debtor is still unable to bear the debt after the court lawsuit, the guarantor needs to bear the guarantee liability. The guarantor of a general guarantee may refuse to bear the guarantee liability to the creditor before the main contract dispute has not been tried or arbitrated, and the debtor's property is still unable to perform its obligations in accordance with the law.
WhileJoint and several liability guaranteeIt means that the creditor may require either the debtor or the guarantor to bear the responsibility, regardless of whether the debtor has the ability to perform the contract.
Whether it is a general guarantee or a joint and several liability guarantee, the guarantee is not something that can be done casually.
Secondly,When signing the IOU guarantee contract, the content should be indicated
If you search the standard format of IOUs, you can indeed find a lot, but the part about guarantors is rarely mentioned. The guarantor may specify this in the IOU, or write a separate guarantee contract.
According toArticle 684 of the Civil Code of the People's Republic of ChinaIt is stipulated that the content of the guarantee contract generally includes the type and amount of the principal claim to be guaranteed, the time limit for the debtor to perform the debt, and the form, scope and duration of the guarantee.
Here it is important to note the issue of the guarantee period. In fact, the guarantee period refers to the guarantee period of the guarantor, if there is an agreement in the contract, it shall be executed according to the agreed period, and if there is no agreement, it shall be handled according to the statutory circumstances. In the case of a general guarantee, the guarantee period is six months from the date of expiration of the performance period of the main debt. If the creditor does not file a lawsuit or apply for arbitration against the debtor during the guarantee period, the guarantor will no longer be liable for the guarantee.
Finally,The interest rate on the loan should not be too high
According toArticle 25 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending CasesIt is stipulated that if the lender requests the borrower to pay interest at the interest rate agreed in the contract, the people's court shall support it, except where the interest rate agreed upon by both parties exceeds four times the one-year loan market interest rate at the time of the conclusion of the contract.
The "one-year loan market ** interest rate" mentioned in the preceding paragraph refers to the one-year loan market ** interest rate authorized by the People's Bank of China to be released monthly by the National Interbank Lending Center from August 20, 2019.
Therefore, the court will not support interest in excess of the "one-year loan market rate".
There are a lot of loan dispute cases, and it is also very troublesome, and there are as many as 1.8 million cases about "loan disputes" in the China Judgment Network.
Many people are embarrassed to directly refuse the guarantee requests of relatives and friends, but it is precisely because of this embarrassment that there are many loan disputes, so you must not casually make loan guarantees for others.
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Before taking out a loan guarantee, be sure to understand the borrower's credit history and repayment ability. If the borrower does not have a good credit history or is weak in repayment ability, then you need to carefully consider whether you should become a guarantor.
Also, be sure to consider the legal risks and liabilities of the guarantee. If you become a guarantor, you will be subject to the corresponding legal risks and liabilities, including the borrower's debts and liabilities.
Edit: Crowds.
Review: Rarity.
Legal review: Lawyer Xiao Yuan.