Brief of the case

    On June 27, 2021, Mr. Liang (the borrower) borrowed money from a bank for the purchase of a car for a period of two years. Chen Mou (guarantor), Shuntong Transport Company (guarantor) and a bank signed a guarantee contract to provide joint and several liability guarantee for the above loans, and the guarantee period is three years from the date of expiration of the debtor's performance of debt as agreed in the main contract. On June 1, 2021, Qin issued a "Guarantee Commitment", which stated that I voluntarily provided joint liability guarantee for the personal automobile consumption loan handled by a bank from June 1, 2021 to December 31, 2021 for the borrower whose vehicle was attached to Shuntong Transportation Company. The term of guarantee shall begin from the date of signing this commitment and end on the date of full repayment of the secured obligation. 

    After the maturity of the loan, part of the principal and the corresponding interest are still owed. A bank to the court, request Liang Mou to bear the repayment responsibility, Chen Mou, Shuntong transportation company, Qin Mou bear joint and several liability for repayment.

Court hearing

    After hearing, the court held that the guarantee commitment letter issued by Qin agreed that the guarantee period was from the date of signing of this commitment letter to the date of full repayment of the secured debt. From the content of the agreement, the date of full repayment of the secured debt is not fixed, so it is impossible to determine the specific expiration time of the guarantee period, so the guarantee period has been in an uncertain state, which belongs to theituation of "as unclear agreement" in Article 32 of the Interpretation of the Supreme People's Court on the Application of the Relevant Guarantee System of the Civil Code of the People's Republic of China. The guarantee period of Qin's guarantee liability shall be six months from the date of expiration of the borrower Liang's debt performance period. In this case, a bank failed to provide evidence to prove that it requested Qin to assume the guarantee liability within six months from the date of expiration of Liang's debt performance period, and therefore Qin's guarantee liability was extinguished. Therefore, the court did not support the lawsuit request of a bank asking Qin Mou to bear joint and several liabilities. 

    A bank argues that within 6 months from the date of expiration of Liang Mou's debt performance period, it has requested the guarantor Chen Mou and Shuntong Transportation company to assume the guarantee liability, and according to the joint and several of the guarantee liability, it should be considered that a bank has made a request to Qin mou to assume the joint and several guarantee liability. The Court held that Article 29 of the Interpretation of the Supreme People's Court on the Application of the Relevant Guarantee System of the Civil Code of the People's Republic of China stipulates that there are two or more guarantors for the same debt, and the people's Court will not support if the creditor claims that it has exercised its rights to other guarantors during the guarantee period on the grounds that it has exercised its rights to some guarantors according to law during the guarantee period. According to this, the effect of claiming rights to a surety can only be applied to the surety whose rights are claimed, and not to other surety, so the collection of a bank to the surety Chen and Shuntong transportation company cannot be regarded as the exercise of rights to Qin. Therefore, the court does not support this defense of a bank.

    Therefore, the judgment of the borrower Liang Mou to bear the repayment responsibility, Chen Mou, Shuntong transportation company to bear the joint and several liability for the above loans, Qin Mou does not bear the responsibility.

Judge's statement

    This case is a joint guaranty of the same claim by multiple guarantors. In the case of several guarantees on the same debt, there may be a joint liability relationship between the guarantors (with a right of recourse between each other) or no joint liability relationship (with no right of recourse between each other). In the case of joint and several debt relationship between the guarantors, the creditor's legal exercise of rights against some guarantors is less effective than other guarantors. This is because the guaranty debt is a contingent debt, which is different from the debtor's own debt in the main contract, and the guarantor performs the debt or assumes the responsibility on behalf of the debtor. If the creditor does not legally claim rights against a surety during the surety period, it is essentially a discharge of the surety's surety debt, and the surety's surety debt is eliminated by the discharge, so the surety does not need to assume the surety debt. According to the provisions of Article 520 of the Civil Code, in joint and several debts, only performance, set-off, deposit, discharge, confusion, delay in payment and acceptance of the six acts that lead to the elimination of the debt can have effect on other debtors. According to the negative interpretation, in a joint guarantee, the creditor's legal claim of rights to some of the guarantors is naturally less effective than other guarantors. 

    The creditor is reminded here that the collection of the guarantor is not joint and several, therefore, the creditor should correctly and timely claim the right to each guarantor, so as to avoid the loss of their rights.

    This article is transferred from the "Shandong High Law" wechat public number, thank you!