In life, people who can be used as debt guarantees come from relatives or friends, while those who can be used as debt guarantees for others lack understanding of the legal risks they should bear. once
The debtor can't fulfill his due repayment obligations, and the guarantor has to pay his debts for his friends with his own assets. What's more, he may even lose everything because of the guarantee. The newspaper "Chengyang News" lawyer information desk reminds reading.
Before the guarantee, consider whether you have the ability to bear the guarantee responsibility and whether it will have a significant impact on the family, so as to prevent the tragedy of selling property to pay off debts for friends.
If the repayment cannot be made on time, the guarantor shall bear the responsibility.
According to the current laws of our country, the liability of guarantee is divided into general guarantee and joint and several liability guarantee. General guarantee means that when the debtor still cannot bear the debt through litigation, the guarantor shall bear the guarantee responsibility;
Joint and several guarantee liability means that the creditor can directly ask the debtor or guarantor to bear the liability, which is not limited by the debtor's ability.
For example, Zhang borrowed 654.38 million yuan as a friend to provide guarantee for Zhang. After the loan expires, Zhang is unable to repay the loan and the court decides to bear it.
Joint and several liability for repayment. In the end, it was forced to sell the house to repay the principal and interest of the loan, and the total cost for the creditor to realize the creditor's right was 654.38+200,000 yuan.
The guarantor shall compensate the losses after assuming the guarantee responsibility. "Whether it is a general guarantee liability or a joint guarantee liability, the guarantor can make an equal guarantee to the debtor after assuming the guarantee liability.
Recover to make up for your losses. "
In case of malicious collusion or misappropriation of collateral, the guarantor shall be protected.
If the guarantor provides property guarantee in good faith, but the debtor and creditor maliciously embezzle the collateral, in this case, the effectiveness of the guarantee is invalid and the rights and interests of the guarantor are protected by law.
"According to the provisions of Article 30 of the Guarantee Law," the creditors of the main contract use fraud, coercion and other means to make the guarantor provide a guarantee against his true meaning. The guarantor does not assume the guarantee responsibility "this
In this case, the guarantee contract is invalid and the guarantor does not have to bear the guarantee responsibility. "
In general, a written guarantee contract is required for guarantee, but in judicial practice, without a written contract, guarantee may still have the effect of guarantee.
The entry into force generally refers to the addition of a guarantee clause to the main contract, or the signature and seal of the guarantor at the signature of the contract, or other written forms recognized by the guarantor.
"When the debtor is unable to pay off the debts due, the guarantor should know the scope of his responsibility, and the specific guarantee responsibility shall be determined by law." Lawyer Xiao Shengdong said that according to Article 2 1 of the Guarantee Law, "guarantee"
The scope of guarantee includes the principal creditor's rights and interest, liquidated damages, damages and expenses for realizing creditor's rights. If there are other provisions in the guarantee contract, such provisions shall prevail. In accordance with the above-mentioned laws and regulations, if there is an agreement in the contract,
The scope of suretyship liability shall be determined in accordance with the contract. If there is no agreement in the contract, it may be determined according to law.
Pay attention to the warranty period.
The guarantee period is a complicated legal system in the guarantee law. According to the current guarantee law, the guarantee period conforms to the contract and legal provisions, mainly as follows: the agreed guarantee period.
If the contract stipulates, there is no agreement or the agreed guarantee period is unknown, it shall be 6 months according to law. If it is indicated that the guarantee period is 2 years until the principal and interest are repaid. After the expiration of the guarantee period, the guarantor will no longer bear the guarantee responsibility. Within the legal or agreed warranty period
If the creditor does not claim the guarantee liability, then the guarantor can be exempted from the guarantee liability.
Where the principal creditor's rights are transferred, the guarantor shall continue to bear the guarantee responsibility within the original guarantee scope, but if there is an agreement in the guarantee contract, it shall prevail. If the principal debt is transferred, it shall be transferred by
The guarantee liability is mainly based on a trust relationship, and the guarantor can only undertake the guarantee liability with the written consent of the guarantor. The transfer of the debt guaranteed by the guarantor may cause actual losses to the guarantor.
Loss, in this case, without the consent of the guarantor, the guarantor can be exempted from the guarantee responsibility.
In both cases, the guarantor may not assume the guarantee responsibility.
Lawyer Xiao Shengdong said that according to the provisions of the Guarantee Law, there are two situations in which the guarantor does not assume the guarantee responsibility:
(a) the parties to the main contract collude to defraud the guarantor to provide a guarantee;
(two) the creditor of the main contract uses fraud, coercion and other means to make the guarantor provide a guarantee against the true meaning.
The original intention of guarantee is to ensure the smooth realization of creditor's rights, but if the parties in the guarantee relationship do not pay attention to avoiding risks, it may also cause a lot of trouble.
The problems that the guarantor needs to pay attention to are summarized as follows:
1, pay attention to the effectiveness of the main contract;
2, review the debtor's solvency;
3. Pay attention to the amount, scope and method of guarantee;
4. Main guarantee period;
5. If possible, let the debtor provide counter-guarantee.
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