What happened to Huizhou Century Garden?

Appellant (defendant in the original trial): Century Garden Hotel, Huiyang District, whose domicile isNo. 1 Danshui Donghua Avenue, Huiyang District, Huizhou City.

Operator: Zhang Changzhan.

Appellant (defendant in the original trial): Huizhou Huiyang Xinying Joint Venture Industry and Trade Co., Ltd., whose domicile isNo. Donghua Avenue 1 in Danshui District.

Legal Representative: Zhang Changzhan, general manager.

The agents ad litem of the above two appellants are the same: Ceng Wenjing, lawyer of Guangdong Yuan Biao Law Firm.

The agents ad litem of the above two appellants are the same: Fan, lawyer of Guangdong Law Firm.

Appellee (plaintiff in the original trial): Ye Jianhui, * *, *.

Authorized Agent: Lin Weike, lawyer of Guangdong Jian Yue Law Firm.

Defendants in the original trial: Zhang Changzhan,,,.

The appellant Huiyang Century Garden Hotel, Huizhou Huiyang Xinying Joint Venture Industry and Trade Co., Ltd., the appellee Ye Jianhui and the defendant Zhang Changzhan in the original trial refused to accept the civil judgment of Guangdong Huiyang District People's Court (20 16) Guangdong 1303 Minchu No.3898, and appealed to our court. After the court accepted the case, a collegiate bench was formed according to law to hear the case, and the trial has now ended.

Opinions of the parties in the original trial

On June 4th, 20 1 65438+1 the plaintiff in the original trial filed a lawsuit with the court in the original trial, requesting1and ordering the defendant to repay the plaintiff the loan principal110,000 yuan and the monthly interest on the loan (up to the date of prosecution) of 330,000 yuan; 2. The defendant was ordered to bear 65,000 yuan for the plaintiff to recover the lawyer's fees from the three defendants; 3. Request to order Defendants II and III to bear joint and several liability for the litigation request 1 2; 4. The defendant was ordered to pay the legal costs of this case. The plaintiff changed the claim to monthly interest in court, and calculated it as 2 points.

The main facts and reasons are as follows: On February 2, 2004, Defendant I borrowed RMB 1 10,000 from the plaintiff to meet the needs of business turnover, and signed a loan agreement. The loan agreement stipulates that the loan period is 6 months and the loan interest is 3 cents per month. It is also agreed that defendant 1 shall bear the legal fees arising from the performance of the agreement and disputes, and defendant 2 and defendant 3 shall bear them. However, the defendant has not repaid the principal and interest to the plaintiff, and the plaintiff has repeatedly failed to collect it. Defendants 1 violated Article 206 of the Contract Law and the provisions of the Loan Agreement, and Defendants 2 and 3 failed to perform their guarantee responsibilities according to law. Based on the above facts, the plaintiff filed a civil lawsuit with the people's court in accordance with Article 108 of the Civil Procedure Law in order to safeguard his legitimate rights and interests, and urged the people's court to support the plaintiff's claim.

Defendant Zhang Changzhan did not appear in court, nor did he submit any written defense and copies of evidence to our court.

Facts ascertained by the court of first instance

The court of first instance found through trial that the defendant Zhang Changzhan borrowed RMB 6,543.8+0,000 from the plaintiff Ye Jianhui on February 65, 1965, and the plaintiff Ye Jianhui paid the loan of RMB 6,543.8+0,000 to the defendant Zhang Changzhan by bank transfer on the same day, and the defendant Zhang Changzhan issued a loan receipt to the plaintiff Ye Jianhui, the current loan term of which is RMB 1 million (RMB 65,438+). The borrower is willing to pay (3 cents per month) 3% monthly interest to the lender; 2. The expenses (including fees, attorney fees and execution fees) arising from the conclusion, performance and dispute settlement of this Agreement shall be borne by the Borrower. 3. If there is any contradiction in the recycling process, all responsibilities shall be borne by the borrower (stamped with the official seal of Huiyang Century Huayuan Hotel and Novelty United Trading Co., Ltd.). Borrower Zhang Changzhan. 20 1 4.12.12 ".Defendant Zhang Changzhan didn't repay the interest of 20 16 to1to plaintiff Ye Jianhui, and plaintiff Ye Jianhui claimed to Defendant Zhang Changzhan many times, but Defendant Zhang Changzhan hasn't repaid the loan so far, so the original trial sued our hospital.

It was also found that the plaintiff spent 65,000 yuan in legal fees for this lawsuit.

Reasons and results of the judgment of the court of first instance

The court of first instance held that this case was a private lending dispute case. Private lending refers to the financing behavior between natural persons, legal persons and other organizations and between them. Legal lending relationships are protected by law. The defendant Zhang Changzhan borrowed money from the plaintiff Ye Jianhui due to difficulties in business turnover, and issued a loan receipt to the plaintiff after receiving the money. The loan relationship between the two parties was established. The plaintiff demanded that the defendant Zhang Changzhan repay the loan principal of 1 1,000,000 yuan, and calculate the interest during the period of capital occupation according to the monthly interest rate of 20 1 to 20 1 1, which is in compliance with the law.

The original and the defendant agreed in the IOU that the defendant Zhang Changzhan should bear the expenses for the plaintiff to realize the creditor's rights, including the lawyer's fees paid by the plaintiff to realize the creditor's rights. The above agreement is legal and valid. Ye Jianhui, the plaintiff, has actually paid 65,000 yuan in legal fees for this lawsuit. The plaintiff's request to order the defendant Zhang Changzhan to bear the expenses is legal and reasonable, and our court supports it.

The defendants Huiyang Century Garden Hotel and Huizhou Huiyang Xinying Joint Venture Industry and Trade Co., Ltd. provided guarantees for the above debts of the defendant Zhang Changzhan, but no guarantee method was agreed. According to Article 19 of the Guarantee Law of People's Republic of China (PRC), if the parties have no agreement or unclear agreement on the guarantee method, they shall bear the guarantee liability according to the joint and several liability guarantee, and it is determined that Huiyang Century Garden Hotel and Xinying Joint Venture Trading Co., Ltd. provide the joint and several liability guarantee for the defendant Zhang Changzhan. Therefore, the reason why the defendants Huiyang Century Huayuan Hotel and Huizhou Huiyang Xinying Joint Venture Industry and Trade Co., Ltd. were required to bear joint and several liabilities was established, and our hospital supported it.

Defendant Zhang Changzhan is legally summoned by the court summons and refuses to appear in court without justifiable reasons, which shall be deemed as giving up the right of defense and shall be treated as default. To sum up, in accordance with Articles 18 and 19 of the Guarantee Law of People's Republic of China (PRC), Article 29 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Disputes, and Articles 64, 142 and 144 of the Civil Procedure Law of People's Republic of China (PRC), On 20 17, 16 (20 16) Guangdong 1303, the defendant Zhang Changzhan repaid the loan principal of the plaintiff Ye Jianhui 1000000 yuan, and paid the interest during the corresponding capital occupation period (the monthly interest rate is 2%, since 2003). 2. The defendant Zhang Changzhan repaid the plaintiff Ye Jianhui's lawyer's fee of 65,000 yuan within 10 days from the date when this judgment became legally effective; Three. Defendants Huiyang Century Huayuan Hotel and Huizhou Huiyang Xinying Joint Venture Industry and Trade Co., Ltd. are jointly and severally liable for all the above debts of Defendant Zhang Changzhan; If the obligation to pay money is not fulfilled within the period specified in this judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC). The case acceptance fee of this case is 17356 yuan, and 8678 yuan is halved, which shall be borne by the defendant Zhang Changzhan, the defendant Huiyang Century Huayuan Hotel and Huizhou Huiyang Xinying Joint Venture Industry and Trade Co., Ltd. (the plaintiff Zhang Changzhan has paid the legal fee of 8678 yuan in advance).

Opinions of parties in second instance

Defendants Huiyang Century Huayuan Hotel and Huizhou Huiyang Xinying Joint Venture Industry and Trade Co., Ltd. refused to accept the judgment of the first instance and appealed to our court with the request: 1. Please cancel the judgment of first instance according to law and change the judgment according to law. Two. The acceptance fee for the first and second trials of this case shall be borne by the Appellee.

The main facts and reasons are: the appellee claims that the appellant's guarantee responsibility has exceeded the guarantee period and should be exempted from the appellant's guarantee responsibility according to law. In this case, it can be seen from the loan receipt issued by the appellee that although the appellant is the guarantor of the loan, the loan receipt does not stipulate the guarantee period of the guarantor. According to Article 26 of the Guarantee Law of People's Republic of China (PRC): "If the guarantor and creditor of joint and several liability guarantee have not agreed on the guarantee period, the creditor has the right to ask the guarantor to assume the guarantee responsibility within six months from the expiration of the independent debt performance period. If the creditor fails to ask the guarantor to assume the guarantee responsibility during the guarantee period agreed in the contract and the guarantee period stipulated in the preceding paragraph, the guarantor shall be exempted from the guarantee responsibility. " It is stipulated that the Appellee shall require the Appellee to assume the guarantee responsibility within 6 months from the date of maturity of the loan. Judging from the loan period of both parties, the Appellee asked the Appellee to assume the guarantee responsibility that obviously exceeded the guarantee period. Therefore, the appellant should be exempted from the guarantee responsibility according to law. To sum up, the appellant thinks that the appellant's guarantee liability is exempted according to law, and requests the court of second instance to cancel the original judgment and change the judgment according to law.

Ye Jianhui, the appellee, replied in the second trial: We believe that Zhang Changzhan, as the actual operator of the appellant, has always advocated repayment to Zhang Changzhan, that is, he advocated repayment obligation to the appellant, and there is no problem of not advocating it for six months. The judgment of first instance found that the facts were clear, the applicable law was correct, and the appellant's appeal had no factual and legal basis. It requested the court of second instance to reject the appellant's appeal and uphold the original judgment.

In the second trial, neither the appellant nor the appellee submitted new evidence.

The facts ascertained by our hospital,

After trial, it was found that the facts identified in the original trial were basically true and were confirmed.

In addition, according to the application of Ye Jianhui, the plaintiff in the original trial, our hospital made a civil ruling of (20 17) Guangdong 13 Minzhong 1042- 1 on April 25th, 1965, freezing his bank account in Century Huayuan Hotel, Huiyang District (bank: China).

Reasons and results of our court's judgment

We believe that this case is a private lending dispute. Combined with the appellant's appeal request and reasons, the focus of the dispute between the two parties in the second instance of this case is: whether the guarantee liability claimed by the appellee has exceeded the guarantee period, and whether the guarantee liability should be exempted. The specific opinions are as follows:

The two appellants claim that the warranty period has expired and they can be exempted from liability. Ye Jianhui, the appellee, claimed that after the loan was due, he repeatedly urged Ye Changzhan, the appellant and his legal representative, to repay the debt and demanded to assume the guarantee responsibility. He claimed repayment from Zhang Changzhan, that is, he claimed repayment obligation from the appellant, and there was no problem of exceeding the guarantee period. In this regard, the court believes that Article 19 of the Guarantee Law of People's Republic of China (PRC) stipulates: "If the parties have no agreement on the guarantee method or the agreement is unclear, they shall bear the guarantee liability according to the joint and several liability guarantee." Article 26 stipulates: "If the guarantor of joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor has the right to require the guarantor to assume the guarantee responsibility within six months from the date of expiration of the independent debt performance period. If the creditor fails to ask the guarantor to assume the guarantee responsibility during the guarantee period agreed in the contract and the guarantee period stipulated in the preceding paragraph, the guarantor shall be exempted from the guarantee responsibility. " The Supreme People's Court's "About Application"

To sum up, the original trial found that the facts were clear and there was no improper handling, which was upheld by our court. The appellant's appeal has no legal basis, and our court does not support his appeal. According to Item (1) of Paragraph 1 of Article 170 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:

Reject the appeal and uphold the original judgment.

The acceptance fee for the second instance case 17356 yuan shall be borne by the appellant.

This is the final judgment.

Presiding judge Ceng Ying