Supreme Court: Determination and Treatment of Debt Consolidation

202 1, 1 Article 552 of the Civil Code, which came into effect, stipulates that a third person agrees to the debtor's joining the debt and informs the creditor, or the third person expresses his willingness to join the debt to the creditor, and if the creditor fails to explicitly refuse within a reasonable period, the creditor may request the third person to undertake joint and several debts with the debtor within the scope of the debt he is willing to bear. This is the first time that China has stipulated debt participation in the form of law. Prior to this, the Jiangsu Higher People's Court explicitly used the concept of "debt" for the first time, and stipulated in Article 17 of the Summary of Discussions on Several Issues Concerning the Application of the Contract Law of People's Republic of China (PRC) (Su Gaofa Audit Committee [200516]: "debt refers to Article/. Or appear in legal works. In practice, the Supreme People's Court applied the debt participation theory in his judgment. The connection of debts belongs to unilateral contract, agreed contract, unnecessary contract and nameless contract.

Debt joining and third-party guarantee are very different: 1. After the debt is added, it bears the debt side by side with the main debtor, which is the same as the debtor's debt, and there is no master-slave relationship between them, that is, it becomes the same debtor with the debtor; After the third party provides the guarantee, it belongs to the master-slave relationship with the principal debtor, and the contract also belongs to the master-slave contract. 2. Debt joining is not limited by the guarantee period, but only by the limitation of action; Guaranteed guarantee is subject to both the guarantee period and the limitation of action. The warranty period belongs to the scheduled period. In the absence of agreement between the parties, six months after the expiration of the performance period of the principal debt, in the joint guarantee, the creditor must require the guarantor to bear the guarantee responsibility within the guarantee period, otherwise, if the creditor does not claim the right after the guarantee period, the guarantor will no longer bear the guarantee responsibility. 3. After the debt is added, whether the debtor can recover from the debtor after paying off the debt depends on the specific agreement between the debtor and the debtor when the debt is added; The guarantor enjoys the right of recourse, that is, after assuming the guarantee responsibility, the guarantor enjoys the rights of the creditor against the debtor and has the right to recover from the debtor within the scope of undertaking the guarantee responsibility. Therefore, the debtor bears a heavier responsibility than the guarantor.

A, the Supreme People's Court (20 19) the Supreme People's Court No.316 civil judgment and handling;

On the validity and legal nature of the guarantee agreement of the repayment plan involved. The General Principles of the Civil Law of People's Republic of China (PRC) and Article 143 of the national laws stipulate: "A civil juristic act that meets the following conditions is valid: (1) The actor has corresponding capacity for civil conduct; (2) the meaning is true; (3) It does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs. " Article 8 of the Contract Law of People's Republic of China (PRC) stipulates: "A legally established contract is legally binding on the parties. The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization. Contracts established according to law are protected by law. " Article 52 stipulates: "A contract is null and void under any of the following circumstances: (1) one party concludes a contract by fraud or coercion, which harms the interests of the state; (2) Malicious collusion that harms the interests of the state, the collective or a third party; (3) Covering up illegal purposes in a legal form; (4) damaging the public interest; (5) Violating the mandatory provisions of laws and administrative regulations. " In this case, Zhang et al. signed a loan agreement with Noon Sunshine Company, Tianyi Company and Fish Navy on 2015,6543810.4, stipulating that Noon Sunshine Company would borrow 22 million yuan from Zhang et al. for the company's week. From 2065438 to August 2005, Zhang was registered as a shareholder of Noon Sunshine Company, holding 19.6%. Zhang was registered as the CFO of Noon Sunshine Company on October 20 16 10. On June 22nd, 20 16, Zhang (Party B) signed the Repayment Plan Guarantee Agreement with Zhang, Liang Bo and Zhao (Party A), stipulating that "the remaining twenty-three million yuan only (23 million yuan), and Party B promised to repay Party A within 18 months, with a loan of 65,433. During the retrial, Zhang admitted that he had undertaken the construction of Building No.2, Building No.6 and Building No.8 in the case of Noon Sunshine Company, but Zhang repeatedly went to the construction site to obstruct the construction due to the loan problem in this case. In our court's opinion, Zhang, as a shareholder and financial controller of Noon Sunshine Company, has no evidence to prove that he was unaware of the debt and the legal consequences of signing the Repayment Plan Guarantee Agreement from the time when the debt was incurred to the time when the Repayment Plan Guarantee Agreement was signed. As mentioned above, the Repayment Plan Guarantee Agreement is legal and effective. Article 91 of the General Principles of Civil Law of People's Republic of China (PRC) stipulates: "If a party transfers all or part of its rights and obligations to a third party, it shall obtain the consent of the other party and shall not make profits. ..... except as otherwise provided by law or the original contract. "Article 84 of the People's Republic of China (PRC) Contract Law stipulates:" If the debtor transfers all or part of its contractual obligations to a third party, it shall obtain the consent of the creditor. "According to whether the original debtor continues to undertake debts, debt commitments can be roughly divided into exemption debt commitments and coexistence debt commitments. When the debtor and the creditor agreed on the debt commitment, it was not clearly agreed whether the original debtor was divorced from the creditor-debtor relationship, which constituted a competing debt commitment. The debtor's act of issuing a debt certificate to the creditor in its own name and promising to perform the debt on time shows that it will independently bear the debt of the original debtor. If the creditor agrees, it constitutes an exemption debt commitment. In this case, Zhang (Party B) and Zhang et al. (Party A) agreed in the repayment plan guarantee agreement involved: "1. Party B originally lent Party A RMB 43 million (? 43 million yuan), in view of Party B's current practical difficulties, both parties agree that Party B will lend Party A RMB thirty-three million yuan only (? 33 million yuan), the specific calculation method is that Party B will offset the five-story steel structure (existing open space) attached to Building No.5 of Feng Dan Chaoyang Phase I with a single floor area of 890 square meters10 million yuan only (? 654.38 million yuan), as a loan paid by Party B to Party A ... Second, only 23 million yuan (? 23 million yuan), Party B guarantees to pay it to Party A within 18 months, and it must be paid in cash, and the loan is interest-free for 18 months. 3. From the date of signing, the attached steel structure of Building No.5 of Feng Dan Chaoyang Phase I guarantees to conclude a house purchase contract within 1 month and file it with the government. 4. When Party A is constructing the steel structure attached to Building 5, Party B shall ensure the three links (water, electricity and road) ... "From the literal meaning of the agreement, this case involves 43 million yuan, and Zhang promises to repay it. With Zhang's consent, Zhang only needs to repay 33 million yuan, of which 6,543,800,000 yuan is compensated by the real estate involved in Chaoyang real estate project, and Reng Zhang needs to repay 23 million yuan after compensation. Zhang personally issued another debt certificate to Zhang and promised to repay it. Zhang agreed that Zhang should bear the responsibility for repayment, but both parties did not agree that Noon Sunshine Company should be separated from the creditor-debtor relationship. Zhang did not explicitly exempt Noon Sunshine Company from the repayment obligation, and there was no other evidence or behavior to show that Zhang agreed to bear the debts of Noon Sunshine Company independently. Therefore, this case should be recognized as a competing debt commitment. As a third party outside the loan contract, Zhang promised Zhang to bear the debt of Noon Sunshine Company. His behavior is not to create a new creditor-debtor relationship, but to join the original creditor-debtor relationship between Noon Sunshine Company and Zhang. Zhang joined the debt to ensure the realization of Zhang's creditor's rights, but the content agreed in the Repayment Plan Guarantee Agreement does not belong to the guarantee in the sense of the guarantee law. The relationship between Zhang and Noon Sunshine Company is not the relationship between the guarantor and the debtor, but the relationship between * * * and the debtor in the commitment of concurrent debts. The essential difference between debt joining and guarantee is that the debtor is not subordinate to the debtor, but has a * * * relationship with the debtor, and the original debtor has no owner. In order to realize its creditor's rights, the creditor can directly choose the debtor to repay the debt, without waiting for the debtor's delay in performance. The debtor has the obligation to fully pay off the debt, and the legal effect of its performance extends to the debtor, while the guarantor only bears the responsibility when the main debt is delayed. To sum up, although the name of the repayment plan guarantee agreement involved contains the word "guarantee", the name does not match the text. According to the first paragraph of Article 125 of the Contract Law of People's Republic of China (PRC), "if the parties have disputes about the understanding of the terms of the contract, they should determine the true meaning of the terms according to the words and expressions used in the contract, the relevant terms of the contract, the purpose of the contract, trading habits and the principle of good faith". The nature of the guarantee agreement of the repayment plan involved is not a guarantee contract, but a debt joining agreement. Zhang's legal status is not a guarantor, but a debtor. Zhang shall repay the debts agreed in the Guarantee Agreement of Repayment Plan to Zhang, and shall not withdraw the repayment commitment without the consent of the creditor Zhang.

Second, the Supreme People's Court (20 17) the Supreme People's Court No.219 "civil judgment" identification and handling:

(1) The question of whether Ganlu Company should bear the repayment responsibility. According to the facts ascertained in this case, Gan Aluminum Company identified itself as the debtor, promised to repay, and fulfilled some repayment obligations as the debtor. Should be regarded as a debtor, and be jointly and severally liable for the debts of Borui Company. The main reasons are as follows: 1 and 200 1. In order to increase the company's share capital, Ganlu Company needs to apply to Gansu Branch of Bank of China for the trademark of the former Zhangye dehydrated vegetable general factory in Gansu Province and the equipment purchased with foreign government loans. In this application, Wang Xing, president of Gansu Branch of Bank of China, suggested in his comments that the new company should bear the debt and go through the relevant legal procedures. After that, Ganlu Company did not give written consent to this application. Instead, from 2004 to 2007, it voluntarily repaid the buyer's credit of 65,438+0,265,438+0,000 US dollars and some government loans, and signed and issued a number of dunning notices sent to Ganlu Company by the creditor China Bank Gansu Branch. The above behavior shows that Ganlu Company has admitted that it is the debtor of the loan in this case and has fulfilled some debts. 2.2065438+On June 24th, 2003, Ganlv Company issued a repayment plan to Gansu Branch of Bank of China, explicitly agreeing to repay the remaining principal and interest of the loan agreement. At this point, the meaning of Ganlu Company as a debtor is further clarified. 3. Jiangxi Travel Company has always occupied the equipment purchased with the loan in this case and is the actual beneficiary. In this regard, Jiangxi Travel Company did not deny it in the retrial. Although Gan Aluminum Company claimed that after Borui invested this part of the equipment in Gan Aluminum Company, the assets were converted into shares of Borui Company, and Borui Company transferred the shares and obtained the consideration of the equipment, but Gan Aluminum Company did not prove this, and whether Borui Company obtained the consideration did not conflict with Gan Aluminum Company as a debtor. Accordingly, China Bank Gansu Branch and others requested Jiangxi Travel Company to assume joint and several liability for repayment, which was well-founded in accordance with the law. The judgment of the second instance exempts Ganlu Company from civil liability, which is indeed improper, and our court will correct it.

Three. The Supreme People's Court (20 16) determination and handling of the Supreme People's Court's civil judgment No.501;

We believe that the focus of the dispute in the second instance of this case is as follows: 1. Is the liability nature of Jin Jue Company a guarantee liability or a debt participation? 2. What is the amount of debt that Jin Jue Company should bear? 3. Whether there are irregularities in the procedure of first instance; 4. Whether the debt in this case exceeds the limitation of action.

First, about the nature of Jin Jue's responsibility. On June 1 2005, Bank of China Langfang Branch signed a mortgage guarantee contract with Jin Jue Company, and Jin Jue Company agreed to provide mortgage guarantee for the debt principal, interest and expenses under the corresponding loan contract. The two sides later signed a supplementary agreement on July 23, 2008, stipulating two contents. First, Jin Jue Company agreed to bear the repayment responsibility for the debt principal guaranteed by the aforementioned mortgage guarantee contract totaling 232 million yuan; second, it agreed to continue to provide guarantee with the collateral agreed in the mortgage guarantee contract. For the first item, the agreement also specifies the specific amount and time for Jin Jue Company to fulfill its repayment obligations in four phases, and stipulates that the interest on the outstanding debt principal shall be calculated and paid from June 1 day, 2008. Subsequently, Jin Jue Company issued a loan repayment plan to Bank of China Langfang Branch on June 5, 2009, promising that "27 million yuan will be repaid in 2009, and the remaining funds will be paid off in two years before the end of the second half of 20 10 and 201/kloc-0". According to the above, it can be seen that the content of the follow-up negotiation between the two parties is not how to realize mortgage or provide guarantee. Jin Jue Company's intention to make a direct repayment to Langfang Branch of Bank of China is clear, and it is not just the intention to assume the guarantee responsibility. Therefore, the appeal reason of Jin Jue Company claiming to be the guarantor cannot be established. The original judgment found that Jin Jue Company was the direct debtor of the disputed creditor's rights in this case, which had sufficient factual basis and was upheld by our court.

Four, the Supreme People's Court (20 15) Min Zi No.434 "Civil Judgment" identification and handling:

We believe that there are two controversial issues between the parties in the second instance of this case: first, whether the 2. 10 letter sent by Gaozhou Liquor Company is an addition to the debts involved; Second, according to the letter 2. 10, whether the limitation of action against Gaozhou Liquor Company has passed.

1. Is the letter 2. 10 issued by Gaozhou Liquor Company an addition to the debts involved?

The original judgment found that from 2008 to 20 13, Nan 'an Grain Company, Longteng Liquor Company and Huihe Trading Company successively signed five contracts for the purchase and sale of grain involved. The first three copies were signed by Nan 'an Grain Company and Longteng Liquor Company, and the last two copies were signed by Nan 'an Grain Company and Trading Company. The parties are different, and the signing time is sequential. However, it is clearly stipulated in the subsequent contract that all unpaid funds in the previous contract will be transferred to the "contract". The agreement clearly shows the continuity of five contracts and the nature of contractual debts. This debt is the debt involved. The debt involved is bounded by the letter 2. 10. Previously, the debt involved was the debt of Longteng Liquor Company to Nan 'an Grain Company, and later it will become a debtor with the trading company. Gaozhou Liquor Company stated that when its letter 2. 10 was issued, Huihe Trading Company's debt to Longteng Liquor Company had not yet occurred, so it could not constitute debt participation. Our hospital believes that future debts can also be borne, and whether the debts actually occur does not affect the effectiveness of the debtor's intention to join the debts. The 2. 10 letter sent by Gaozhou Liquor Company to Nan 'an Grain Company stated: "Huihe Trading Company and Longteng Liquor Company are subordinate companies controlled by our company and are responsible for purchasing some materials of our company. Our company promises that all economic and legal responsibilities related to materials and food procurement between your company and our company will be borne by our company. " Gaozhou Liquor Company promises to undertake the legal responsibility of grain purchase between Nan 'an Grain Company and "the Company". According to the last letter, "companies" include Longteng Liquor Company and Huihe Trading Company. When sending the letter 2. 10, Huihe Trading Company is not the debtor of the debt in this case, and its legal liability is naturally the future debt. The statement in letter 2. 10 reflects the meaning that Gaozhou Liquor Company assumes the debt to Nan 'an Grain Company through the future meeting and trading company. Gaozhou Liquor Company claims that the letter 2. 10 means to provide mortgage instead of debt joining. However, according to the provisions of Article 179 of the Property Law of People's Republic of China (PRC), mortgage refers to that the debtor or a third party guarantees the performance of the debt, does not transfer the possession of the property to the creditor, and the debtor fails to perform the due debt or the creditor enjoys the priority right to be compensated for the property. 2. The letter10 does not reflect the meaning of mortgage, and debt participation can coexist with mortgage, and the two are not exclusive. As for whether Huihe Trading Company and Gaozhou Liquor Company are related, it has no influence on whether its letter 2. 10 constitutes debt participation. Two payment plans were signed in July 20 14, and the first trial of this case was accepted in August 20 14. Gaozhou Liquor Company claimed that during the first-instance litigation in this case, in order to reach a settlement, it issued two payment plans to Nan 'an Grain Company, but it did not submit other evidence to prove that our hospital could not accept Gaozhou Liquor Company's claim. The payment plan clearly shows that Gaozhou Liquor Company is unable to pay the "grain payment" instead of assuming the "guarantee responsibility", and its repayment amount is also consistent with the debt amount of this case and the trading company. Gaozhou Liquor Company does not advocate any other creditor-debtor relationship with Nan 'an Grain Company. The payment plan also confirmed that the letter 2. 10 sent by Gaozhou Liquor Company meant to join the debts involved.

The letter No.210 of Gaozhou Liquor Company shows that the intention of debt joining does not violate the law, and it is true and effective. Since then, Huihe Trading Company's debt to Nan 'an Grain Company actually occurred, and Nan 'an Grain Company requested Gaozhou Liquor Company to assume the responsibility of joining the debt according to letter 2. 10, which should be supported. The original judgment found that the letter 2. 10 issued by Gaozhou Liquor Company was based on facts and the applicable law was correct.