On March 6th, 2009, Zou Shan, the borrower, borrowed money from and issued an IOU of 1 10000 yuan. Both parties agree that the loan will be used for 30 days. If the repayment is made on time, the repayment will be less than 10000 yuan. If the repayment cannot be made on time, the borrower voluntarily bears all the litigation costs and legal liabilities for realizing the creditor's rights ... Lin Zou and another guarantor, Wang Yong, voluntarily provide a guarantee for Zou Shan's loan, and provide a guarantee commitment letter for Zhou Ying, which reads: "I (we) voluntarily provide a guarantee for Zou Shan's loan from Zhou Ying at 438+06 on March 65, 2009100,000 yuan, and my signature is as a co-guarantor:" ……"
In June 2009, the loan expired and the debtor Zou Ping had disappeared. Creditor Zhou Ying then found two guarantors to assume the guarantee responsibility. Guarantor Wang and reached an agreement to bear 50,000 yuan, but refused to bear the responsibility. Therefore, the creditor Zhou Ying will take the case to court on May 2, 20091and demand the defendant to repay the loan of 50,000 yuan and interest.
Entrustment and its litigation process:
Defendant Zou Lin came to our company in June 2009, and I participated in the trial of first instance as the defendant's entrusted agent.
Because of the special content of the guarantee contract in this case, there are both general guarantee content provisions and joint guarantee signature, and the court is likely to identify it as a joint guarantee contract. (In the case of general guarantee, only when the debtor's property cannot be repaid can the guarantor be required to bear it, while joint guarantee means that the debtor cannot repay it at maturity, and the creditor has the right to claim the main rights from the guarantor and the debtor, which depends entirely on the creditor's choice. Therefore, I would like to remind all my friends that when providing guarantees for others, we should distinguish between general guarantees and joint guarantees. He attended the trial with the client informed.
On June 29th, 2009, the trial was held in Duoshi Court, Jiyang County, Jinan City. I ask the court to dismiss the lawsuit on the grounds that the defendant is not suitable (according to Article 17 of the Guarantee Law, the nature of the guarantee is general). However, the court cited the provisions of Article 18 of the Guarantee Law, failed to support the defendant's request, and sentenced the defendant to bear the loan of 50,000 yuan and interest.
On July 17, 2009, the court of first instance made a judgment. On July 30th of the same year, Lin Zou came to my unit again and entrusted me as his second trial agent. Thank him for his trust. During the first trial, I asked Lin Zou to report the fraud of the debtor Zou Ping to the local public security organ. At the same time, I learned that the husband of Zhou Ying, the plaintiff in the first instance, also reported the case.
An appeal was filed on August 1 2009, but due to the scheduling problem of the case, it has not been possible to hold a trial. During this period, the debtor Zou Ping has been arrested and brought to justice and tried for fraud.
On 20 10 65438+ 10 19, the second trial was held in Jinan Intermediate People's Court, presided over by Judge * *. In the second trial, I changed the agency scheme, no longer taking the nature of the guarantee as the representative, but directly taking the validity of the contract as the representative: First, the debtor Zou Ping was found to be fraudulent by the court in Jiyang County, Jinan City, so the guarantee contract should be deemed invalid.
The Intermediate People's Court of this case asked us to provide relevant evidence to support my agency opinion, and gave 15 days to make up the certificate. (In fact, when the second trial was held, the trial of the debtor's fraud case had been completed, but the judgment had not yet been issued. This 15 day bought us time to collect evidence).
2065438+001October 26th, 10, I wrote an application requesting the intermediate people's court to go to the county court for investigation and evidence collection. The intermediate court does not allow it (because the grass-roots court will not cooperate with the agent's evidence collection behavior in many cases). In this case, on June 28th, 65438, I personally went to the archives of Jiyang County Court to investigate the judgment and trial record of the debtor Zou Ping's fraud case. After many twists and turns, after being signed by the president, I went all over the archives, the office of the criminal trial court and the trial room, and obtained the evidence materials and trial records of the judgment.
With the support of this new evidence, I drafted a proxy statement, requesting the court to find that the guarantee contract is invalid and the appellant does not assume the guarantee responsibility. Because the debtor should be deemed to be fraudulent, in this case, the creditor does not claim that the contract is invalid, but the guarantor claims that the guarantee contract is invalid. The court should take the initiative to invalidate the guarantee contract and exempt the appellant from the guarantee responsibility.
On June 23rd, 20 10, the Intermediate People's Court made the final judgment of the second instance: 1. The civil judgmentNo. * * of Jiyang County Court (2009) was revoked; Second, reject Zhou Ying's claim against Lin Zou. First, the second instance litigation costs shall be borne by the appellee.
At this point, the second trial ended and the appellant won the case. Through the joint efforts of the parties and myself, the economic losses were recovered for the parties.
It should help you to look at this real case.