The act of a borrower obtaining a loan as security or using some property as collateral. So how to determine the jurisdiction after the loan guarantee contract appears? This article takes you to understand the loan guarantee contract.
Loan guarantee of a hospital, a fiber company and a group limited liability company in Zibo.
Referee summary
For the interpretation of contract terms, we must explore the inherent and true expression of the parties to the contract and judge the literal expression of the contract terms, that is, the method of literal interpretation. Only when the literal interpretation cannot determine the exact meaning of the contract terms,
The Supreme People's Court civil ruling
(2007) Min Zhong Er Zi No.99
Appellant (defendant in the first instance): a hospital in Zibo.
Legal Representative: Sun Mou, president of this hospital.
Appellee (plaintiff in the first instance): Bank of China Limited.
Person in charge: Wang Rui, bank.
Defendant in the original trial: a fiber company.
Legal Representative: Sun Zheng, chairman of the board of directors of this company.
Defendant in the original trial: a group limited liability company.
member as of right
The appellant, a hospital in Zibo (hereinafter referred to as a pharmaceutical company in Shandong (hereinafter referred to as Boshan Sub-branch of China Bank), a fiber company in Shandong (hereinafter referred to as a company in Shandong) and the defendant in the original trial (hereinafter referred to as a company in Shandong), refused to accept the civil rulingNo. 17 and appealed to our hospital. According to the law, Judge Pei Yingshuo is the presiding judge of the court, Judge Zhu Hainian is the representative, and the clerk is responsible.
According to the review of the Higher People's Court of Shandong Province, Boshan Sub-branch of China Bank signed the first guarantee contract No.004050 with a hospital and a company. The signing time was June 65438+1October 65438+April 2004, with an amount of 3 million articles, the contents of which were legal application, dispute settlement and jurisdiction, and it was agreed that "this contract shall be governed by the laws of People's Republic of China (PRC). Any dispute arising from the performance of this contract or related to this contract shall be settled by both parties through consultation. If negotiation fails, the contract shall be submitted to Zibo Arbitration Commission for secondary guarantee, stipulating that "this contract is applicable to all disputes related to this contract between the people and the state of China, and both parties shall settle them through negotiation. A person who failed in negotiations. "The loans involved in these eight transactions are RMB 89 175354. Based on the above facts, the Shandong Higher People's Court held that the arbitration clause agreed by both parties was valid for the $3 million loan contract sued by Boshan Sub-branch of Bank of China, and our court had no jurisdiction over it. However, the remaining eight loan contracts involved US$ 65,438+US$ 065,438+US$ 420,000 directly to the local people of the lender. Because the subject matter involved in the eight contracts is 1 1.42 million US dollars, which is equivalent to RMB 89 175354, which is beyond the jurisdiction of Zhongshan District People's Court and is in line with the Supreme People's Court's filing approval. To sum up, among the nine loan contracts involved in this case, a hospital's objection to the jurisdiction of the $3 million loan contract was established and the hospital supported it; The reasons for the jurisdiction objection of the remaining eight loan contracts were not supported by the court because there was no factual basis. Boshan Sub-branch signed the serial number Zhong Bo Xiezi No.2004050 on June 65438+1October 65438+April 2004 in accordance with the provisions of Paragraph 2 of Article 111 of the Civil Procedure Law of People's Republic of China (PRC) and Article 139 of the Opinions of People's Republic of China (PRC) on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC), with the amount of 3000 yuan. 2. Reject the jurisdictional objection raised by a hospital to the remaining eight loan contracts in this case.
A hospital refused to accept the above-mentioned civil ruling in the original trial and appealed to our hospital, saying that the facts in the original trial were unclear. In the first loan contract signed between a hospital and Boshan Sub-branch of Bank of China (Zi Zhong Bo Jie Zi No.2004050), both parties clearly agreed on the solution, that is, "if negotiation fails, it shall be submitted to Zibo Arbitration Commission for arbitration". Because the last eight loans were signed on the basis of the first loan contract, they are regarded as the continuation of the first contract, and the last eight loan contracts are all standard contracts. According to the interpretation principle of contract law, this interpretation should be unfavorable to the party providing the standard contract, namely Boshan Sub-branch of Bank of China. Therefore, the last eight loan contracts should be interpreted against Boshan Sub-branch of Bank of China based on the principle of fairness, and will be submitted to Zibo Arbitration Commission for arbitration soon, which is the true intention of both parties. The original trial held that it had jurisdiction over the last eight contracts, but the facts were unclear. Therefore, the second instance was requested to cancel the ruling of the original trial according to law, and Boshan Sub-branch of Bank of China was rejected.
Our court believes that: regarding the relationship between the nine loan contracts signed by the parties to this case, firstly, the parties did not clearly stipulate or express the relationship between the nine contracts involved in this case in the relevant contracts; Secondly, from the content and characteristics of each loan contract, the loan amount and performance behavior are also independent, and there is no correlation between each contract; Thirdly, from the perspective of contract interpretation, when the parties have disputes over the terms of the contract, they must explore the true expression of the parties' hearts, and the first way to judge the true expression of the parties is to judge the literal expression of the parties. This is the so-called literal interpretation in contract interpretation. Only when the literal interpretation cannot determine the exact meaning of the terms, can other interpretation methods be used to determine the meaning of the contract terms and fill the loopholes in the contract. In this case, except for the first loan contract, the terms of other loan contracts are clearly stated, and when it happens, it shall be deemed that the agreement is the true intention of the parties when it is submitted to the local people's court for trial. Although the litigation terms involved in the loan contract in this case belong to the terms in the standard contract, they cannot be understood differently according to the usual understanding, so the interpretation rules of standard terms in China's Contract Law should not be applied. The appeal reason that a court thinks that the original trial has no jurisdiction over the last eight loan contract cases involved in this case cannot be established, and the court does not support it. There was an arbitration clause in the contract of the original trial. Except for the loan contract with the number Zi Zhong Bo Jie Zi No.2004050 signed by the parties to this case on June 5438+1October 65438+April, 2004 and the corresponding guarantee contract with the amount of US$ 3 million, it was correctly determined that it had jurisdiction over the remaining eight loan contracts in this case, which should be supported by our court. In accordance with Article 154 of the Civil Procedure Law of People's Republic of China (PRC) and Item (3) of Paragraph 1 of Article 8 of the Measures for Payment of Litigation Fees, our judgment is as follows:
Reject the appeal of a hospital in Zibo against the original jurisdiction objection ruling, and maintain the original jurisdiction ruling.
Appellant 50 yuan returned the acceptance fee of the second trial case paid in advance by a hospital in Zibo.
This is the final verdict.
The above is the confirmation of the jurisdiction of the loan guarantee contract brought by the judgment of this small series combined with the actual case. I hope it helps you.
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Second, how to solve the loan guarantee contract
First of all, when there is a loan contract, try to solve it through negotiation. Of course, you can also entrust a lawyer to assist in the negotiation. If no settlement can be reached through negotiation between several parties, it can only be resolved through legal channels, that is, by bringing a lawsuit; Secondly, in the process of solving the problem through legal channels, you can choose to file a lawsuit yourself or entrust a lawyer to represent you, so as to protect your legitimate rights and interests to the maximum extent through the professional ability of lawyers. After all, no one's money falls from the sky; Third, after accepting the entrustment, the lawyer will make a comprehensive judgment according to the specific circumstances of the case, the existing evidence and relevant legal provisions, and then make corresponding litigation strategies, whether it is the debtor or the guarantor, or the debtor and the guarantor. This is the wisdom of lawyers.
Third, how to solve the loan contract
1. How to solve the loan contract 1? The specific ways to solve the loan contract are as follows: (1) If both parties can reach an agreement through negotiation, it shall be settled through negotiation; (2) If negotiation fails, if there is a dispute settlement mechanism in the contract, and if there is an arbitration clause in the contract, as long as the agreed terms conform to the law, they can only be settled by arbitration, excluding jurisdiction. If there is no arbitration clause in the contract, but there is agreed jurisdiction, as long as the relevant agreement conforms to the legal provisions, it will be subject to the agreed jurisdiction; (3) If there is no settlement mechanism stipulated in the contract, a lawsuit may be brought. 2. Legal basis: Article 687 of the Civil Code of People's Republic of China (PRC) stipulates in the guarantee contract that when the debtor fails to perform the debt, the guarantor shall bear the guarantee responsibility, which belongs to the general guarantee. The guarantor of a general guarantee has the right to refuse to assume the guarantee liability to the creditor before the main contract has been tried or arbitrated and the debtor's property has been enforced according to law, except in one of the following circumstances: (1) The debtor's whereabouts are unknown and there is no property for execution; (2) The people's court accepted the bankruptcy case of the debtor; (3) The creditor has evidence to prove that the debtor's property is insufficient to perform all debts or cannot perform debts; (4) The Guarantor waives the rights stipulated in this clause in writing. II. What should be included in the loan contract? What should be included in the loan contract is as follows: 1. Names of both parties. Information such as gender ID number; 2. Currency, amount and interest rate of the loan; 3. Payment method, payment term and repayment term; 4. Rights and obligations of both parties; 5. Liability for breach of contract; 6. Dispute settlement.