There are great differences between debt joining and third-party guarantee: 1. After debt joining, it bears the debt in parallel with the main debtor, which is identical with the debtor's debt, and there is no master-slave relationship between them, that is, it becomes the same debtor with the debtor; After the third party provides a guarantee, it belongs to the master-slave relationship with the principal debtor, and the contract also belongs to the master-slave contract. 2. Debt joining is not limited by the guarantee period, but only by the limitation of action; Guaranty with guarantee is subject to the double limitation of guarantee period and limitation of action. The guarantee period belongs to scheduled period. In the case of no agreement between the parties, six months after the expiration of the main debt performance period, in the joint guarantee, the creditor must ask the guarantor to bear the guarantee responsibility within the guarantee period, otherwise, if the creditor does not claim the right after the guarantee period, the guarantor will no longer bear the guarantee responsibility. 3. After the debt is joined, whether the debtor can recover from the debtor after paying off the debt depends on the specific agreement between the debtor and the debtor when the debt is joined; The guarantor enjoys the right of recourse, that is, after assuming the guarantee responsibility, the guarantor enjoys the rights of the creditor against the debtor and has the right to recover from the debtor within the scope of undertaking the guarantee responsibility. Therefore, the debtor assumes a heavier responsibility than the guarantor.
1. Identification and handling of the Supreme People's Court (219) Supreme People's Republic of China No.316 Civil Judgment:
About the validity and legal nature of the Repayment Plan Guarantee Agreement. Article 143 of the General Principles of the People's Republic of China and the National Law stipulates: "A civil juristic act that meets the following conditions is valid: (1) The actor has corresponding capacity for civil conduct; (2) the meaning is true; (3) It does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs. " Article 8 of the Contract Law of the People's Republic of China stipulates: "A legally established contract is legally binding on the parties. The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization. Contracts established according to law are protected by law. " Article 52 stipulates: "A contract is null and void under any of the following circumstances: (1) One party concludes a contract by fraud or coercion, which harms the national interests; (two) malicious collusion, damage the interests of the state, the collective or the third party; (3) Covering up illegal purposes in a legal form; (four) damage the interests of the public; (5) Violating the mandatory provisions of laws and administrative regulations. " In this case, on January 4, 215, Zhang Gangliang and others signed a Loan Agreement with Noon Sunshine Company, Tianyi Company and Fish Navy, stipulating that Noon Sunshine Company would borrow 22 million yuan from Zhang Gangliang and others due to the turnover of the company. In August 215, Zhang Chengshuang registered as a shareholder of Noon Sunshine Company, holding 19.6% of the shares. In January 216, Zhang Chengshuang registered as the financial controller of Noon Sunshine Company. On June 22, 216, Zhang Chengshuang (Party B) signed the Repayment Plan Guarantee Agreement with Zhang Gangliang, Liang Bo and Zhao Xutian (Party A), stipulating that "the remaining twenty-three million yuan only (23 million yuan) shall be paid by Party B to Party A within 18 months, and the loan shall be paid in cash without interest for 18 months." During the retrial, Zhang Chengshuang admitted that he had undertaken the construction of Building 2, Building 6 and Building 8 in the case of Noon Sunshine Company, while Zhang Gangliang repeatedly went to the construction site to obstruct the construction because of the loan in this case. Our court believes that Zhang Chengshuang, as a shareholder and financial controller of Noon Sunshine Company, had no evidence to prove that Zhang Chengshuang was unaware of the debt and the legal consequences of signing the repayment plan guarantee agreement after the debt was generated and before the repayment plan guarantee agreement was signed. As mentioned above, the Repayment Plan Guarantee Agreement is legal and valid. Article 91 of the General Principles of the Civil Law of the People's Republic of China stipulates: "If a party to a contract transfers all or part of its rights and obligations to a third party, it shall obtain the consent of the other party to the contract and shall not make profits. ..... unless otherwise stipulated by law or otherwise stipulated in the original contract. " Article 84 of the Contract Law of the People's Republic of China stipulates: "If the debtor transfers all or part of the contractual obligations to a third party, it shall obtain the consent of the creditor." According to whether the original debtor continues to undertake the debt, the debt commitment can be roughly divided into exemption debt commitment and coexistence debt commitment. When the debtor and the creditor agreed on the debt commitment, it was not clearly agreed whether the original debtor was divorced from the creditor-debtor relationship, which constituted a concurrent debt commitment. The debtor's act of issuing a debt certificate to the creditor in his own name and promising to perform the debt on time shows that he will independently assume the debt of the original debtor, and if the creditor agrees, it constitutes an exemption debt commitment. In this case, Zhang Chengshuang (Party B) and Zhang Gangliang and others (Party A) agreed in the Repayment Plan Guarantee Agreement involved in the case: "1. Party B originally lent Party A RMB 43 million (? 43 million yuan), considering the actual difficulties of Party B at present, both parties agree that Party B will lend Party A RMB thirty-three million yuan only (? 33 million yuan), the specific calculation method is that Party B will offset the five-story steel structure attached to Building No.5 of' Danfeng Chaoyang' Phase I with a single floor area of 89 square meters (the current open space) by 1 million yuan only (? 1 million yuan), as the loan paid by Party B to Party A.. Second, the remaining twenty-three million yuan only (? 23 million yuan), Party B must pay Party A in cash within 18 months, and the loan will be paid without interest for 18 months. Three,' Danfeng Chaoyang' No.5 building affiliated steel structure from the date of signing, guarantee to make a purchase contract within one month and put it on record in the government. 4. When Party A is constructing the steel structure attached to Building No.5, Party B shall ensure the three links (water, electricity and road) ... " Judging from the literal meaning of the agreement, the case involved 43 million yuan as Zhang Chengshuang's loan, and Zhang Chengshuang promised to repay it. With Zhang Gangliang's consent, Zhang Chengshuang only needs to repay 33 million yuan, of which 1 million yuan is compensated by the property of Danfeng Chaoyang real estate project, and Zhang Chengshuang still needs to repay 23 million yuan after compensation. Zhang Chengshuang issued another debt certificate to Zhang Gangliang in his own name and promised to repay it. Zhang Gangliang agreed that Zhang Chengshuang should bear the repayment responsibility, but the two sides did not agree that Noon Sunshine Company should be separated from the creditor-debtor relationship. Zhang Gangliang did not explicitly exempt Noon Sunshine Company from the repayment obligation, and there was no other evidence or behavior to show that Zhang Gangliang agreed that Zhang Chengshuang should bear the debts of Noon Sunshine Company independently. Therefore, this case should be considered as a concurrent debt commitment. As a third party outside the loan contract, Zhang Chengshuang promised to Zhang Gangliang to assume the debts of Noon Sunshine Company. His behavior was not to create a new creditor-debtor relationship, but to join the original creditor-debtor relationship between Noon Sunshine Company and Zhang Gangliang. Zhang Chengshuang joined the debt to ensure the realization of Zhang Gangliang's creditor's rights, but the content agreed in the Repayment Plan Guarantee Agreement is not a guarantee in the sense of guarantee law, and the relationship between Zhang Chengshuang and Noon Sunshine Company is not the relationship between guarantor and debtor, but the relationship between * * * and debtor in the concurrent debt commitment. The essential difference between debt joining and guarantee is that the debtor is not subordinate to the debtor, but * * * with the debtor, and the original debtor has no owner. In order to realize its creditor's rights, the creditor can directly choose the debtor to repay the debt, without waiting for the debtor's delay in performance, the debtor has the obligation to pay off the debt completely, and its legal effect of performance extends to the debtor, while the guarantor assumes the responsibility only when the main debt is delayed. To sum up, although the name of the Repayment Plan Guarantee Agreement involved in the case contains the word "guarantee", the name does not conform to the text. According to the first paragraph of Article 125 of the Contract Law of the People's Republic of China, "If the parties have disputes about the understanding of the terms of the contract, the true meaning of the terms shall be determined according to the words and expressions used in the contract, the relevant terms of the contract, the purpose of the contract, the trading habits and the principle of good faith". The nature of the Repayment Plan Guarantee Agreement involved in the case is not a guarantee contract, but a debt joining agreement. Zhang Chengshuang's legal status is not a guarantor, but a debtor. Zhang Chengshuang should repay the debts agreed in the Repayment Plan Guarantee Agreement to Zhang Gangliang, and the repayment promise cannot be withdrawn without the permission of the creditor Zhang Gangliang.
ii. Identification and handling of the Supreme People's Court (217) Supreme People's Republic of China No.219 Civil Judgment:
(1) The question of whether Ganlv Company should bear the repayment responsibility. According to the facts ascertained in this case, Ganlv Company identified itself as a debtor, promised to repay, and fulfilled some repayment obligations as a debtor. It should be regarded as a debtor and bear joint and several liabilities for the debts of Borui Company. The main reasons are as follows: 1. In 21, in order to increase capital and share, Ganlv Company needed to apply to Gansu Branch of Bank of China for the application of the trademark of the former Zhangye dehydrated vegetable factory in Gansu Province and the equipment purchased with foreign government loans to invest the foreign production line imported from Zhangye dehydrated vegetable factory in Gansu Province with foreign government loans in Ganlv Company, so as to increase the company's share capital. In this application, wang xing, the head of China Bank Gansu Branch, put forward in the annotation that the new company should bear the debt and go through the relevant legal procedures. After that, Ganlu Company did not issue a written consent to this application, but from 24 to 27, it voluntarily repaid the buyer's credit of more than 1.21 million US dollars and part of the government loan, signed several dunning notices sent by the creditor China Bank Gansu Branch to Ganlu Company, issued a repayment plan, and borrowed money from Ganzhou City, Zhangye City, the guarantor of this case. The above behavior shows that Ganlu Company has admitted that it is the debtor of the loan in this case and has fulfilled some debts. 2. On June 24th, 213, Ganlv Company issued a repayment plan to Gansu Branch of Bank of China, and explicitly agreed to repay the remaining principal and interest of the Lending Agreement. At this point, the meaning of Ganlu Company as a debtor is further clarified. 3. Ganlv Company has always occupied the equipment purchased by using the loan in this case and is the actual beneficiary. In this regard, Ganlv Company did not deny it in the retrial. Although Ganlv Company claimed that after Borui invested this part of the equipment in Ganlv Company, the assets were converted into Borui Company's equity, and Borui Company transferred its equity to the outside world and obtained the consideration for the equipment, Ganlv Company did not prove this, and whether Borui Company obtained the consideration did not conflict with Ganlv Company as a debtor. Accordingly, China Bank Gansu Branch and others requested Ganlv Company to assume joint and several liability for repayment, which was well founded in accordance with the law. The judgment of second instance exempts Ganlu Company from civil liability, which is indeed improper, and our court will correct it.
III. Identification and handling of the Supreme People's Court (216) Supreme People's Court No.51 Civil Judgment:
We believe that the focus of the second-instance dispute in this case is: 1. Is the nature of the responsibility that Jin Jue Company should bear the guarantee responsibility or the debt participation? 2. What is the amount of debt that Jin Jue Company should bear; 3. Whether there are irregularities in the procedure of first instance; 4. Whether the debt in this case exceeds the limitation of action.
first, about the nature of Jin Jue's liability. On June 1st, 25, Langfang Branch of Bank of China signed the Mortgage Guarantee Contract with Jin Jue Company, and agreed to provide mortgage guarantee for the debt principal, interest and expenses under the corresponding loan contract. The two parties later signed the Supplementary Agreement on July 23rd, 28, which stipulated two contents. First, Jin Jue Company agreed to bear the repayment responsibility for the debt principal guaranteed by the aforementioned Mortgage Guarantee Contract totaling 232 million yuan, and second, it agreed to continue to provide guarantee with the collateral agreed in the Mortgage Guarantee Contract. As for the first item, the agreement also stipulated in detail the specific amount and time for Jin Jue Company to fulfill its repayment obligations in four installments, and agreed that the interest on the unpaid debt principal will be calculated and paid from June 1, 28. Subsequently, Jin Jue Company issued the Loan Repayment Plan to Langfang Branch of Bank of China on November 5, 29, promising to "repay 27 million yuan in 29, and the rest of the funds are planned to be paid off in two years before the end of 211". According to the above contents, it can be seen that the content of the follow-up negotiation between the two parties is not how to realize the mortgage right or provide the guarantee. The intention of Jin Jue Company to promise to repay the loan directly to Bank of China Langfang Branch is clear, and it is not just the intention of assuming the guarantee responsibility. Therefore, the appeal reason that Jin Jue Company claims to be a guarantor cannot be established. The judgment of the original trial that Jin Jue Company is the direct debtor of the disputed creditor's rights in this case has sufficient factual basis, which is upheld by our court.
iv. Identification and handling of the Supreme People's Court (215) Min Er Zhong Zi No.434 "Civil Judgment":
The court believes that there are two controversial issues among the parties in the second instance of this case: first, whether the 2.1 letter sent by Gaozhou Liquor Company is an addition to the debts involved; Second, whether the limitation period of action for the claim of Gaozhou Liquor Company based on the letter 2.1 of Nan 'an Grain Company has expired.
1. Whether the 2.1 letter sent by Gaozhou Liquor Company is an addition to the debts involved.
The original judgment found that from 28 to 213, Nan 'an Grain Company, Tenglong Liquor Company, Huihe Trading Company successively signed five grain purchase and sale contracts involved. The first three copies were signed by Nan 'an Grain Company and Tenglong Liquor Company, and the last two copies were signed by Nan 'an Grain Company and trading company. The parties were different, and the signing time was successively. However, it is clearly stipulated in the subsequent contracts that all the unpaid payment in the previous contract shall be transferred to the "Contract". The agreement clearly shows the continuity of the five contracts and the identity of the contractual debts. This debt is the debt involved. The debt involved is bounded by letter 2.1. Previously, the debt involved was the debt of Tenglong Liquor Company to Nan 'an Grain Company, and later it will become a debtor with the trading company. Gaozhou Liquor Company said that when its 2.1 letter was issued, the debts of Huihe Trading Company to Tenglong Liquor Company had not yet occurred, so it was impossible to join the debt. Our court believes that debts incurred in the future can also be assumed, and whether the debts have actually occurred does not affect the effectiveness of the debtor's expression of intention to join the debts. The 2.1 letter sent by Gaozhou Liquor Company to Nan 'an Grain Company stated: "Huihe Trading Company and Tenglong Liquor Company are subordinate companies controlled by our company, and they are responsible for the procurement of some materials of our company. Our company promises the relevant economics and laws of materials and grain procurement between your company and this company.