Brief of the case

    On September 30, 2021, a bank (lender) of the plaintiff and a real estate company (borrower) of the defendant signed a Working capital Loan Contract, and the loan contract stipulated that the loan amount was 37,999,000 yuan; Purpose of loan: new loan to repay the old; On the same day, the plaintiff a bank (creditor) and the defendant Wang mou (guarantor), Yang Mou (guarantor) signed a "guarantee contract" to provide guarantee for the above loans. Contract agreement: In order to ensure the effective performance of the "working capital loan Contract" signed between a real estate company and creditors, the guarantor is willing to provide joint and several liability guarantee for the claims formed by creditors and debtors. The principal creditor's right secured shall be a loan, the principal amount of which shall be RMB 3,79,499,000 yuan. The scope of surety guarantee includes the principal, interest, penalty interest, compound interest, liquidated damages, damages and the cost of realizing the creditor's rights.

    After the loan was issued, a real estate company did not pay interest to the plaintiff as agreed in the contract, and did not fulfill the agreed repayment obligation after the loan expired, and still owes 37,699,000 yuan of the loan principal and the remaining interest, penalty interest and compound interest. To this end, the plaintiff appealed to the court, asking the court to support the plaintiff's claim.

    After responding to the lawsuit, the defendant Wang Mou argued that he was the guarantor of the new and old loan contract, the plaintiff did not perform the obligation to inform, and the defendant Wang Mou should not assume the guarantee responsibility.

Court hearing

    A bank of the plaintiff issued a loan of 37,999,000 yuan to a real estate company of the defendant in accordance with the contract, and a real estate company of the defendant failed to repay the principal and interest of the loan within the agreed time limit, shall perform the contractual obligations to repay the principal and interest of the loan, and shall bear the liability for default of overdue repayment according to the loan contract. The court supported the plaintiff's claim that a bank required the defendant to repay the loan principal of 37,699,000 yuan and the remaining interest, compound interest and penalty interest.

     The defendant Wang mou and Yang mou signed the guarantee Contract as the guarantor of the loan, that is, the new loan, and the two parties as the guarantor of the new loan clearly knew that the purpose of the loan involved in the case was to return the debt, therefore, the court supported the lawsuit request of the plaintiff bank that the defendant Wang mou and Yang mou bear joint and several guarantee liability for the loan involved in the case. 

    For the defendant Wang Mou argued that he was the guarantor of the new and old loan contract, the plaintiff did not perform the obligation to inform, and the defendant Wang Mou should not assume the responsibility for the defense opinion, the court did not accept. After the defendant Wang Mou and Yang mou assume the guarantee responsibility, they have the right to recover from the defendant a real estate company.

Judge's statement

    The purpose of the loan is to repay the old loan, and whether the guarantor undertakes the guarantee responsibility can be divided into the following situations:

    1. The guarantor of the new loan is the same as the guarantor of the old loan: regardless of whether the guarantor is in love with it or not, the creditor claims that the guarantor of the new loan bears the guarantee responsibility, and the court supports it.

    2. The guarantor of a new loan is different from the guarantor of an old loan: in principle, the guarantor of a new loan is not liable for the guarantee unless the creditor can prove that the guarantor of a new loan knew or should have known at the time of providing the guarantee that the new loan would repay the old loan.

    3. The old loan is not guaranteed and the new loan is guaranteed: it can prove that the guarantor of the new loan is aware of the fact of borrowing the new and paying the old, the guarantor shall bear the guarantee responsibility. 

    The judge reminded that in order to avoid damage to their own rights and interests, creditors usually require a third party to provide guarantee. In the case of a special type of loan, such as "repaying the old with the new", in order to protect the rights and interests of the guarantor, the law restricts the guarantee liability of the guarantor to avoid the unnecessary liability of the guarantor due to ignorance. Therefore, in practice, when financial institutions sign the loan contract and the corresponding guarantee contract, they should pay attention to whether the new loan guarantor knows about the loan contract and the guarantee contract, and reflect it in the loan contract and the guarantee contract, so as to fix the evidence. At the same time, when guaranteeing the debts of others, the guarantor should also pay special attention to the details of the purpose of the loan to avoid damage to its own rights and interests.

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