Legal analysis
After the repayment date, if the borrower fails to repay the loan, the creditor may require the borrower to perform the debt, or may require the guarantor to assume the guarantee responsibility within the scope of its guarantee. In a suretyship contract, the parties agree that the guarantor and the debtor shall be jointly and severally liable for the debt, and the guarantor shall sign it. On the repayment date, if the borrower is unable to repay or cannot find the borrower, the creditor may ask the guarantor to repay. The guarantor's signature on the promissory note is a guarantee of the debt. If the method of guarantee is not agreed, it shall bear joint and several liability for guarantee. Guarantors are generally divided into two forms: general guarantee and joint guarantee. One of the main differences is that joint guarantee is joint and several liability for repayment of the guarantor's debt directly. However, the general guarantor is only liable for repayment of a debt of the debtor when the debtor still has no money to repay after being enforced by the court. However, the following circumstances are excluded: First, the debtor's domicile changes, which makes it difficult for the creditor to ask him to perform his debts. Second, the people's court accepts the debtor's bankruptcy case and suspends the execution procedure. Third, the guarantor waives the rights mentioned in the preceding paragraph in writing.
legal ground
People's Republic of China (PRC) Civil Code
The forms of suretyship include general suretyship and joint liability suretyship. If the parties have not agreed on the way of guarantee or the agreement is unclear in the guarantee contract, they shall bear the guarantee liability according to the general guarantee.
Article 687 General Guarantee refers to the guarantee that the guarantor shall bear the guarantee liability when the debtor fails to perform the debt, as stipulated by the parties in the guarantee contract. The guarantor of a general guarantee has the right to refuse to assume the guarantee liability to the creditor before the main contract dispute has been tried or arbitrated and the debtor's property has been enforced according to law, except in one of the following circumstances: (1) the debtor's whereabouts are unknown and there is no property available for execution; (2) The people's court has accepted the bankruptcy case of the debtor; (3) The creditor has evidence to prove that the debtor's property is insufficient to perform all debts or cannot perform debts; (4) The Guarantor waives the rights stipulated in this clause in writing.