The compensation of project guarantee refers to the process that the guarantor (debtor) assumes the guarantee responsibility (performs the debt to the creditor on its behalf) when the guarantor (debtor) fails to perform the debt.
The recovery of project guarantee refers to the process that the guarantor realizes the creditor's right (recourse debt) from the guarantor and counter-guarantor according to law after obtaining compensation (obtaining creditor's qualification).
In order to maintain the reputation, the guarantor shall perform the liability for compensation within the specified time; In order to protect the interests, the guarantor should also exercise the right of recourse in time after compensation. Therefore, it is very important for engineering guarantee practitioners to understand the conditions, methods and arrangements of compensation and recovery.
1
Engineering guarantee compensation
The establishment of the project guarantee contract requires the guarantor to fulfill the compensation obligation within the scope and amount of guarantee according to the claim. Of course, the beneficiary's claim needs to be decided by an authoritative arbitration institution or people's court, and whether to pay or not and the amount of compensation will be decided according to the judgment issued by an authoritative arbitration institution or court.
The establishment of compensation obligation shall meet the following conditions: 1) The project guarantee contract is valid; 2) The debtor fails to perform due debts; 3) The time for applying for compensation shall not exceed the warranty period stipulated in the contract. Its performance should also be strictly checked before compensation according to the claim and the information provided. After the compensation plan is determined, it should fulfill its responsibilities and obligations to guarantee compensation in time and in full.
The Model Text of Project Guarantee Contract (Jianshi [2005] No.74), which was tried out in 2005, stipulated the compensation arrangement in the Bid Guarantee (Trial) and the Contractor's Performance Guarantee (Trial).
The compensation arrangements of different letters of guarantee are also different. For example, the Owner's Payment Guarantee (Trial) also makes it clear that if you have a dispute with the owner over the quality of the project and the owner refuses to pay you the project amount, if you ask us to perform the guarantee responsibility and pay it, you must also provide the quality explanation materials issued by the project chief supervision engineer, supervision unit or engineering quality testing institution that meets the corresponding requirements.
2
Recovery of project guarantee
The establishment of the project guarantee contract gives the guarantor the right to recover from the debtor in the future. Once the guarantor pays off the creditor on behalf of the debtor, his future right of recovery will be transformed into a vested right of recovery. That is, Article 8 1 of the General Principles of Civil Law stipulates that "the guarantor has the right to recover from the debtor after performing the debt", and Article 3 1 of the Guarantee Law also stipulates that "the guarantor has the right to recover from the debtor after assuming the guarantee responsibility".
Specifically, by performing the guaranteed debt to exempt the debtor from the debt, the guarantor obtains the right of compensation from the creditor, that is, the right of recourse. The creditor not only has the right of recourse against the debtor, but also can take over all the security interests set for the debt and the right of claim against the joint guarantor.
Accordingly, the scope of the right of recourse includes the property paid for the performance of the secured debt, the losses suffered, the expenses paid and the interest. That is to say, in accordance with the provisions of the Bid Entrustment Guarantee Contract (Trial), the guarantor has the right to ask the guarantor to return all the money compensated by the guarantor and the expenses incurred by the guarantor in realizing the creditor's rights. In addition, the guarantor should also pay the interest and penalty interest on the loan of the enterprise bank for the same period from the date of compensation from the self-insurance witness, and pay the guarantor a one-time penalty according to a certain proportion of the compensation.
The establishment of the right of recourse shall meet the following conditions: 1) The guarantor has the guarantee behavior of paying off the guaranteed debt; 2) The repayment behavior of the guarantor relieves the debtor (in whole or in part) of its debt liability to the creditor; 3) There is no fault and no gift for the guarantor to undertake the guarantee responsibility.
The exercise of the right of recourse should follow the following principles: 1) The time for the guarantor to exercise the right of recourse should be after he assumes the guarantee responsibility to the creditor, and after the people's court accepts the debtor's bankruptcy case, if the creditor fails to declare his creditor's rights, the guarantor can participate in the distribution of bankruptcy property and exercise the right of recourse in advance; 2) The guarantor's right of recourse cannot be exercised beyond the scope of the guarantor's guarantee responsibility; 3) The guarantor can exercise the right of recourse by urging the debtor to repay the debt, pursuing the counter-guarantee guarantor, etc., and can also sue for property preservation, payment order, enforcement, bankruptcy and debt repayment according to law.
In addition, it is worth noting that the right of recourse, as a creditor's right, is subject to the limitation of action: the limitation of action for the guarantor to exercise the right of recourse against the debtor starts from the date when the self-insured witness assumes responsibility for the creditor (Paragraph 2 of Article 42 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC)), and generally expires two years from the date when the self-insured witness assumes responsibility for the creditor.
Standardizing the compensation and recovery of the project guarantee business is the basis of perfecting the project guarantee system. Of course, the original intention of the project guarantee system is to ensure the completion of the project, not to compensate and recover after problems occur. The main body of project guarantee should strengthen the management after undertaking business, protect economic interests by reducing the probability of compensation, and really promote the healthy development of construction industry.
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