Interpretation of "borrowing new to repay old" in private lending
"Borrowing new to repay old" is also called "loan to repay loan" ". This article focuses on case analysis from the guarantor’s perspective.
Borrowing new and repaying old was originally a concept used by banks in the financial industry, but it is often encountered in private lending and inter-enterprise lending. In this article, let us take a case as an example to look at the legal provisions and the implications for our practice. Let's first define the concept of "borrowing new to repay old", also known as "loan to repay loan", which means that when the old loan has not been repaid, the creditor and the debtor re-sign a loan contract and use the new loan to pay off part of the loan. Or the whole old loan, that is to say, the old debt is extinguished by the creation of a new one.
The following are cases announced by the court. Trial court: Jiangsu Provincial Higher People's Court. The cause of the case was a private lending dispute. Referee date: 2065 438 + August 23, 2008. This case went through the first and second instances (the first instance was upheld), but during the retrial, although it still affirmed the borrower's repayment responsibility, the High Court clearly disagreed with the lower court's opinion and revoked the decision and changed the judgment. The case is complex and lengthy. In the end, the Supreme People's Court held that within the scope of the loan amount of 6.5438 + 0.5 million yuan, the guarantor did not need to bear guarantee liability. What's the reason? Let’s focus on this point: The statement of the High Court’s retrial: The focus of the dispute in this case is whether the guarantor of the loan contract should bear the guarantee responsibility for the new loan of 15,000 yuan.
1. The respondent Bian remitted 3 million yuan to Xu Feng’s personal account on August 8, 2014, and the remittance account was also under Xu Feng’s personal control. On the day when Bian remitted 3 million yuan, Xu Feng withdrew 6.5438+5 million yuan and returned it to Bian. Xu Feng and Bian both agreed to use RMB 6.5438+0.5 million to repay the old loan owed by Xu Feng to Bian. Therefore, the fact that Xu Feng and the company used the new loan of RMB 6.5438+0.5 million to repay the old loan should be determined. Lawyer Chen explained that the lender and the lender agreed to borrow new money to repay the old money, and the court also agreed to borrow Poxiadonkey.
Second, Article 39 of the "Interpretation of the Guarantee Law" stipulates that if the parties to the main contract agree to repay the old loan with a new loan, the guarantor shall not bear civil liability. If the new loan and the old loan have the same guarantor, the provisions of the preceding paragraph shall not apply. Article 30 of the Guarantee Law stipulates that if the parties to the main contract collude to defraud the guarantor into providing guarantee, the guarantor shall not bear civil liability.
Therefore, if the parties to the loan contract do not repay the old loan in advance and inform the latter guarantor to repay the old loan with a new loan, it is the debtor concealing the fact that it cannot repay the due debt from the guarantor, and the creditor Malicious collusion is the act of defrauding guarantors into providing guarantees for loans whose loan terms have been extended in disguise by issuing new loans to repay old loans. Although Bian claimed that the guarantor should have known about the loan used to repay the old debt, he did not submit sufficient evidence to prove it and the court did not accept it. The guarantor is not responsible for this.
Lawyer Chen’s interpretation: 1. If both parties borrow new money and repay old ones, the guarantor will not bear guarantee liability if he does not inform or provide evidence (depending on the specific circumstances). 2. Many people can understand that the guarantor’s responsibility cannot be increased arbitrarily. For example, if I give you two a guarantee of 2 million yuan, and you have an additional debt of 654.38+0 yuan, I am not responsible. But this case tells us that the increase in the guarantor’s liability is not just a one-dimensional change in the amount; the deterioration in solvency is another aspect. The guarantor thought: "You obviously can't pay back the money now. If you borrow new and pay back the old, your borrower will be fine. It's another extension, but my risk will increase."
Third, balance the private sector The interests of all parties in loan cases must not only protect legal claims, but also prevent illegal debts and prevent illegal activities such as "routine loans" from succeeding. In this case, the trade-in behavior of the creditor and the debtor "trapped" the guarantor by concealing the purpose of the loan, so it was not effective against the bona fide guarantor. The guarantee contract within the scope of trade-in was invalid. The other guarantors of the loan contract, Liu Zheng, Yijia American companies do not need to bear guarantee liability within the trade-in range of 15,000 yuan.
In addition, there is a common question: If the guarantor of the old loan continues to provide security for the new loan with the original guaranteed property, does it need to re-register or change the registration of the new loan? Article 57 of the "Minutes of the Ninth People's Conference" stipulates that if the parties agree that the guarantor of the old loan will continue to provide security for the new loan with the original guaranteed property, the security interest of the old loan that has not been canceled can still provide security for the new loan. .
Above we used a case to analyze the guarantor’s responsibility in the scenario of borrowing new and repaying old. Considering that this case was published in 2065438 + August 2008, you need to learn the newer regulations, which are as follows: Article 16 of the "Interpretation of the Guarantee System of the Civil Code (2021 1)" If the parties to the main contract agree to repay the old loan with a new loan, the people's The court will not support it: If the creditor requests the guarantor of the old loan to assume the guarantee liability, the people's court will not support it. (2) If the guarantor of the new loan is different from the guarantor of the old loan, or the old loan is unsecured but the new loan is secured, the People's Court will not support it, but the creditor has evidence to prove that the guarantor of the new loan knew or should have known about the old loan when providing the guarantee. Except for the fact that the loan is to be repaid with a new loan.