Source: Shanghai High Court
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loan contract The parties change the loan payment account without the consent of the guarantor. Can the guarantor be exempted from all guarantee liability? With the promulgation of the " Civil Code ", the " Guarantee Law " and its judicial interpretations were abolished together. How should the reduction of guarantee liability be determined?
case
Zhao and Qian are friends. Sun is Qian's neighbor and met Zhao through Qian's introduction. In September 2020, Zhao borrowed 1 million yuan from Sun for the need to pay workers' wages, and issued an IOU to Sun, which stated that the amount was transferred to the company's account. Qian signed the IOU as the guarantor to confirm.
Two days later, Sun transferred the loan of 1 million yuan to Zhao's designated bank account through bank transfer, but was refunded. Sun then contacted Zhao and transferred the above loan back to Zhao's son's bank account according to Zhao's instructions. Now that the loan term agreed by both parties expired, Zhao failed to repay the loan on time, Sun sued the court, requesting Zhao to return the principal and pay interest, and Qian bears joint and several liability.
1 verdict
1 First instance court held that . According to the IOU, Qian signed the IOU issued by Zhao to Sun as the guarantor, indicating that he was willing to assume the guarantee liability for Zhao's debts. Therefore, Sun now asks Qian to bear the joint and several repayment obligations, which is not contrary to the law and should be supported.
Qian Mou was dissatisfied and applied for a retrial from the Shanghai Second Intermediate People's Court that the purpose of the loan agreed in this case is to pay the wages of workers in the contracted project and shall not be used for other purposes, and the loan can only be transferred to the corporate account of the project affiliated party. The loan is now transferred to the personal account without the consent of the applicant, resulting in the loan being unable to guarantee the wages of workers in the related projects. This behavior violated the original intention of providing the guarantee. According to Article 24 of the Guarantee Law, he or she will no longer bear the guarantee liability as a guarantor.
Shanghai Second Intermediate People's Court believes that , Zhao is the borrower and Qian is the guarantor. After both of them signed the signature, they issued an IOU to Sun, and Qian should bear the guarantee liability. Qian claimed that Zhao did not pay the loan according to the account stated in the IOU for the specific purpose that Zhao promised him, and he should be exempted from the guarantee liability for the above-mentioned debts, which lacks basis and is difficult to support. Therefore, it was ruled to reject his application for retrial.
comments Analysis
According to the facts found, the lender did not indeed transfer the loan to the agreed company account, but instead transferred it into the personal account in consultation with the borrower. Should the guarantor be exempted from the guarantee liability if the loan payment account is changed in this case without notifying the guarantor? After the promulgation of the Civil Code, how should such cases be handled?
1. Law Article 24 of the Guarantee Law stipulates that if the creditor and the debtor agree to change the main contract, the guarantor shall obtain the written consent of the guarantor. Without the written consent of the guarantor, the guarantor shall no longer bear the guarantee liability. If there are other agreements in the guarantee contract, the agreement shall be followed.
In order to solve the problem of the wide adjustment scope of Article 24 of the Guarantee Law, Article 30 of the Supreme Court Interpretation of the Guarantee Law refined Article 24 of the Guarantee Law. Paragraph 1 of the Article stipulates that during the guarantee period, the creditor and the debtor make changes to the quantity, price, currency, interest rate and other contents of the main contract. Without the consent of the guarantor, if the debtor's debt is reduced, the guarantor shall still bear the guarantee liability for the changed contract; if the debtor's debt is aggravated, the guarantor shall not bear the guarantee liability for the aggravated part.
After the refinement of the "Interpretation of the Guarantee Law", when the main contract is changed without the consent of the guarantor, the following three situations should be distinguished: ① When the change is reduced or can be divided into aggravated, Article 30, paragraph 1 of the "Interpretation of the Guarantee Law" should be applied; ② When the change is not divided into aggravated, Article 24 of the "Interpretation of the Guarantee Law" should be applied; ③ When the change has no impact on the debt, it should not fall within the scope of the above two articles, and the liability should not be affected.
After the promulgation of the Civil Code, the Guarantee Law and its judicial interpretation were abolished. The Civil Code stipulates the impact of the change of the main contract on the guarantee liability in Article 695. The content of this article is directly derived from Article 30 of the Interpretation of the Guarantee Law. However, in the case where the change leads to inseparable aggravation of debts, the Civil Code guarantees that there are no corresponding provisions in the chapter of the contract. In order to solve the above problems, alternative provisions should be found in the Civil Code based on the legislative purpose and theoretical basis of the relevant provisions.
2. Theoretical basis
(I)Reasons for ensuring the subordinate attributes and exceptions of debts
Highest attributes in the scope and strength of the contract, and it is required to ensure that the scope and strength of the debt are consistent with the principal debt in principle. When the scope and strength of the principal debts change, the scope and strength of the debts change as well. Article 695, paragraph 1 of the Civil Code is an exception to subordinate nature. The reason behind this exception is a principled legal prohibition, and is prohibited from posing a burden to it without the consent of the person.
As the normative source of Article 695 of the Civil Code, one of the legislative reasons for Article 24 of the original Guarantee Law should be prohibited by others above, but in the case where the change causes inseparable increase in the guarantee burden, the guarantor will be directly exempted from all guarantee liability. This reason alone is still insufficient.
(II) The guarantee risk is significantly increased, resulting in loss of contract basis
Completely exemption of guarantee liability The possible reason for the subsequent changes in the situation lead to a significant increase in the guarantee risk, which leads to significant unfairness to the guarantor . The contract basis loss rule can be applied to free the guarantor from the guarantee debt.
The Civil Code stipulates the loss of contract basis in Article 533, and the rule is directly deduced by the principle of honesty and trustworthiness of . By introducing the contract basis loss rules located in the general rules of the Contract Section, the problem of no provisions being applied after the promulgation of the Civil Code can be solved.
In addition, when other guarantee risks increase due to changes in the parties to the main contract, the contract basis loss rules can also be applied when meeting the requirements. For example, the parties to the main contract agreed that the purpose of the loan is limited to low-risk investment, and the guarantor enters a guarantee contract based on this, and the borrower will unilaterally use all the loans for gambling. At this time, the guarantor may terminate the guarantee contract based on the contract basis loss rules to exempt him from his guarantee liability.
3. Analysis Conclusion
(I) Trial: Changes in payment account do not affect the guarantee liability
The facts of the guarantee contract and guarantee liability in this case occurred before the promulgation of the Civil Code. According to Article 1, Paragraph 2 of the Time Effectiveness Provisions of the Civil Code, the provisions of the then law, namely the Guarantee Law. Therefore, from the perspective of time effectiveness, Article 24 of the Guarantee Law can be applied to this case. Similarly, the Interpretation of the Guarantee Law can also be applied in terms of time effectiveness.
Before the promulgation of the Civil Code, according to Article 210 of the " Contract Law ", the payment of the loan in a natural person's loan contract is the requirement for the entry into force of the contract. Therefore, the loan contract was established when the agreement was reached, and the subordinate guarantee contract was also established. After
, the lender and the borrower agree to change the loan payment object from the company account to a private account. The applicant claims that this is a change in the purpose of the loan, but he does not provide evidence to explain the restrictions on the use of the loan by different accounts, nor does it prove that this change will aggravate the debt or cause a significant increase in the guarantee risk. Therefore, the guarantor shall still bear all guarantee liability.
(II) Extension: The determination of changes in guarantee liability should be exempted
Although this case cannot apply to the Civil Code in terms of time validity, the issue of the impact of the change in the main contract on guarantee liability still exists after the promulgation of the Civil Code. Assuming that after the promulgation of the Civil Code, after the establishment of the loan contract, the parties to the main contract change the payment account without the consent of the guarantor, can the guarantor claim to exempt them from their full guarantee liability?
After the promulgation of the Civil Code, the possible legal basis for exempting all guarantee liability is the contract basis loss rules. For the case of changing the loan payment account, when the payment account is closely related to the guarantee risk, it should generally be recognized as the contract basis. For example, the funds of the original agreed payment account will be strictly supervised by the regulatory authorities and the purpose of the funds is strictly restricted. At this time, the guarantee risk borne by the guarantor is relatively small. If the payment account is agreed to be a general personal account, it will lead to a significant increase in the guarantee risk of the guarantor. If the guarantor does not want and cannot foresee when concluding the contract, it is significantly unfair to the guarantor and all guarantee liability should be exempted.
Source丨Shanghai Second Intermediate People's Court
Editor in charge | Zhang Qiaoyu
Statement丨Please indicate the source of "Shanghai High Court"
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