What is the role of the guarantor?
A guarantor is a guarantor. According to the provisions of the Civil Code, the third party and the creditor agreed that when the debtor fails to perform the debt, the guarantor shall perform the debt or bear the responsibility as agreed. The third party here is the guarantor, including legal persons, other organizations or citizens who have the ability to pay off debts on their behalf, and the creditors here are both creditors of the principal debt. Here-performing the debt or taking responsibility according to the agreement-is called guarantee debt, and some people call it guarantee responsibility. According to the provisions of the Civil Code, the guarantor's guarantee responsibilities include:
1. The scope of guarantee includes the principal creditor's rights and interest, liquidated damages, damages and expenses for realizing the creditor's rights. If there are other provisions in the guarantee contract, such provisions shall prevail. Where the parties have not agreed on the scope of guarantee or the agreement is unclear, the guarantor shall be liable for all debts.
2. During the guarantee period, if the creditor transfers the principal creditor's rights to a third party according to law, the guarantor shall continue to undertake the guarantee responsibility within the original guarantee scope. If there are other provisions in the guarantee contract, such provisions shall prevail.
3. During the guarantee period, if the creditor allows the debtor to transfer the debt, it shall obtain the written consent of the guarantor, and the guarantor shall no longer bear the guarantee responsibility for the debt transferred without his consent.
4. If the creditor and the debtor agree to change the main contract, they shall obtain the written consent of the guarantor. Without the written consent of the guarantor, the guarantor will no longer bear the guarantee responsibility. If there are other provisions in the guarantee contract, such provisions shall prevail.
5. If the guarantor of general guarantee and the creditor have not agreed on the guarantee period, the guarantee period shall be six months from the expiration of the performance period of the principal debt. If the creditor fails to bring a lawsuit or apply for arbitration to the debtor during the guarantee period stipulated in the contract and the guarantee period stipulated in the preceding paragraph, the guarantor shall be exempted from the guarantee liability; If the creditor has filed a lawsuit or applied for arbitration, the provisions on interruption of limitation of action shall apply during the guarantee period.
6. 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 require 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.
7. The guarantor guarantees the continuing creditor's rights according to Article 14 of the Civil Law. If the guarantee period is not stipulated, the guarantor may notify the creditor in writing to terminate the guarantee contract at any time, but the guarantor shall be liable for the creditor's rights that occurred before notifying the creditor.
8. If the same creditor's right is secured by two things, the guarantor shall be liable for the creditor's right other than the guarantee of things.
If the creditor waives the property guarantee, the guarantor shall be exempted from the guarantee liability within the scope of the creditor's waiver of rights.
9. If a branch of an enterprise as a legal person enters into a guarantee contract with a creditor without the written authorization of the legal person or beyond the scope of authorization, the contract is invalid or the part beyond the scope of authorization is invalid. Creditors and enterprise legal persons who are at fault shall bear corresponding civil liabilities according to their respective faults; If the creditor is not at fault, the enterprise as a legal person shall bear civil liability.
legal ground
People's Republic of China (PRC) Civil Code
Article 490 Where the parties conclude a contract in the form of a contract, the contract is formed when the parties sign, seal or fingerprint it. Before signing, sealing or fingerprinting, one party has fulfilled its main obligations, and the contract is established when the other party accepts it.
A contract shall be concluded in written form as stipulated by laws, administrative regulations or agreed by the parties. If the parties do not do this in writing, but one party has fulfilled its main obligations and the other party accepts it, the contract is established.
Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases
Article 20 If another person signs or seals the creditor's rights certificate or loan contract such as IOUs, receipts and IOUs, but fails to indicate that he is the guarantor or assumes the guarantee responsibility, or cannot be presumed as the guarantor through other facts, and the lender requests him to assume the guarantee responsibility, the people's court will not support it.