First, the nature of security
1 attached attribute: the relationship between the contract and the guarantee is a subordinate relationship, that is, the collateral is attached to the contract.
2 selective: our country contract law set up the guarantee system, but did not stipulate that the party must set up the guarantee.
3 guarantee: guarantee the performance of the contract is the most fundamental characteristic of the guarantee.
Two, the way of security
Guarantee means can be divided into five kinds of guarantee, mortgage, pledge, lien and deposit.
Three, the types and forms of the guarantee contract
Guarantee contract includes guarantee contract, mortgage contract, pledge contract, deposit contract. The exercise of lien is not required to sign a contract. A guarantee contract may be a written contract (including a letter, a fax, etc.) with a secured nature, or a warranty clause in the main contract.
Four, the scope of security
1 guarantee scope: the main creditor's rights and interest, liquidated damages, damages and the cost of the realization of claims. Ensuring that the contract is otherwise agreed upon. Where there is no agreement or agreement on the scope of the guarantee, the guarantor shall bear the responsibility for all the debts.
2 the scope of mortgage guarantee: the main creditor's rights and interest, liquidated damages, damages and the cost of the mortgage. Mortgage contract otherwise agreed, in accordance with the agreement.
3: the main scope of pledge of creditor's rights and interest, liquidated damages, damages, costs and quality of materials kept the cost of the realization of the right of pledge. Where the pledge contract is otherwise agreed upon, it shall.
4 the scope of the lien guarantee: the main creditor's rights and interest, liquidated damages, damages, keeping costs and the expenses for the realization of the lien.
Five, the time of the entry into force of the guarantee
1 mortgage contracts, the registration of collateral must be handled from the date of entry into force of the registration of collateral, voluntary registration of collateral from the date of the signing of the contract.
2 the pledge contract shall matter is delivered to the pledgee.
3 deposit contract from the date of the actual delivery of the deposit into effect.
Six, the reason for the contract is invalid
The 1 subject is illegal: the party is a person with no capacity or limited capacity; the guarantor is not legal; the other conditions of the law.
2 object: the mortgaged property is illegal guarantee law prohibited; mortgage or pledge of property is stolen or lost.
3: illegal content such as creditors by means of fraud or coercion or exploitation and the invalid guarantee buckle in violation of the true meaning of the.
Seven, the legal consequences of invalid guarantee contract
The return of property, compensation for losses, in case of necessity but also the recovery of property.
Eight, the content of the guarantee contract
1 to ensure the content of the contract:
(1) the type and amount of the principal claim;
(2) the duration of the debtor's performance;
(3) the way to ensure;
(4) the scope of the guarantee;
(5) guarantee period;
(6) other matters agreed upon by both parties.
Ensure the contract does not contain all the contents specified in the preceding paragraph, can be corrected.
2 mortgage contract content:
(1) the type and amount of the principal claim secured;
(2) the duration of the debtor's performance;
(3) the name, quantity, quality, condition, location, ownership or use right of the mortgaged property;
(4) the scope of the mortgage guarantee;
(5) other matters that the parties consider necessary.
A mortgage contract does not include all the contents specified in the preceding paragraph, can be corrected.
3 pledge contract content:
(1) the type and amount of the principal claim secured:
(2) the duration of the debtor's performance;
(3) the name, quantity, quality and condition of the substance;
(4) the scope of the pledge guarantee;
(5) the time of mass transfer;
(6) other matters that the parties consider necessary.
Do not fully meet the provisions of the preceding paragraph content of the pledge contract, can be corrected.
Explain the five ways to guarantee
[guarantee]
One, the guarantor qualifications
A legal person, other economic organization or citizen, which has the ability to repay, may be a guarantor. No organization or individual may compel a bank or another financial institution or an enterprise to provide security for others; banks and other financial institutions and enterprises to compel for guarantees, have the right to refuse.
But the following organizations shall not act as a guarantor:
1 state organs may not be the guarantor, but the approval of the State Council for the use or the international economic organization for the transfer of loans, except.
2 schools, kindergartens, mortgage guarantee scope: the main claims and interest, liquidated damages, damages and the realization of the mortgage charges. Mortgage contract otherwise agreed, in accordance with the agreement. Hospitals and other public welfare undertakings for the purpose of social organizations may not be to ensure that people.
ThreeThe branches and functional departments of an enterprise as legal person shall not be a guarantor, but if the branch of an enterprise legal person is authorized by a legal person, it may provide a guarantee within the scope of authorization.
Two, with a total debt of two or more of the guarantor, the guarantor shall bear the responsibility to ensure.
In the same debt, there are more than two of the guarantor, the guarantor shall ensure that the share of the guarantee contract commitment to ensure that the contract. If the share of guarantee to ensure that there is no agreement in the contract, the guarantor shall bear joint liability, the creditor may require any one of the guarantors to take full responsibility to ensure, ensure people are liable to guarantee all obligation. The guarantor who has paid, have the right of recourse against the debtor, the guarantor or other claims jointly and severally liable shall bear its share.
Three, the same creditor's rights both guarantee and the guarantee of the matter, how to ensure that people should bear the responsibility to ensure. Guaranteed liability for creditor's rights other than the guarantee of the person to the thing.
Four, the main contract should pay attention to the changes in the contract.
During the guarantee period, the creditor shall transfer the principal creditor's rights to the third person in accordance with the law, and the guarantor shall continue to undertake the guarantee liability within the scope of the guarantee.
During the guarantee period, when the creditor permits the debtor to transfer his debts, the guarantor shall obtain the written consent of the guarantor, and the guarantor shall no longer bear the liability for the transfer of the debt without his consent.
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 responsibility for ensuring. Ensuring that the contract is otherwise agreed upon.
Two, five kinds of ways and means to ensure
There are two ways to ensure the general guarantee and joint and several liability.
1 general guarantee that the guarantor in the main contract dispute without trial or arbitration, and the debtor's property in accordance with the law enforcement is still unable to fulfill the obligations of the debtor, the debtor can refuse to bear the responsibility to ensure.
But one of the following circumstances, the guarantor shall not exercise the above rights:
(1) changes in the debtor's residence, which resulted in a major difficulty in the creditor's performance of the debtor's performance;
(2) the people's court shall accept the debtor's bankruptcy case and suspend the execution of the procedure;
(3) to give up the rights in writing.
2 joint responsibility to ensure that the debtor to fulfill the obligation provided in the principal contract expires without his debt, the creditor may require the debtor to fulfill the debt, or demand that the surety undertake suretyship liability within the scope of.
Six, guarantee period
1 general guarantee guarantor and the creditor is not stipulated in the guarantee period, guarantee period for performance of the principal debt 6 months from the date of expiration of the guarantee period, domestic debt right has not filed a lawsuit or applied for arbitration to the debtor, the surety shall be relieved of the suretyship liability.
2 joint responsibility to ensure the guarantor and the creditor is not stipulated in the guarantee period, the creditor has the right debt to call the guarantee within 6 months from the date of expiration of the guarantee period, the internal right fails to call the guarantee, the guarantor shall be relieved of the suretyship liability.
[mortgage]
One, the property can be mortgaged according to law
1 all the houses and other attachments of the mortgage;
2 all the machines, vehicles and other property of the mortgage;
3 in accordance with the law, the right to dispose of state-owned land use rights, housing and other fixed on the ground;
4 the mortgage holder shall have the right to dispose of the state-owned machinery, transportation and other property in accordance with the law;
5 the mortgagor to contract and the employer agreed to mortgage the barren hills, ravines and other unreclaimed land use rights;
6 other property that may be mortgaged according to law.
The person in charge of the mortgage may be mortgaged.
Two, according to the law to prohibit the mortgage property
1 land use rights;
2 of the arable land, homestead, plots, such collectively owned land use rights, except where otherwise provided for by law;
3 schools, kindergartens, hospitals and other public welfare institutions, educational facilities, medical and health facilities and other social welfare facilities;
4 human rights, the right to use unclear or controversial property;
5 in accordance with the law of the seizure, seizure, supervision of property;
6 other property that may not be mortgaged according to law.
Three, the mortgage must be handled when the property and the mortgage registration department.
1 with no land fixed on the land use rights of the mortgage, for the issuance of the land use right certificate of land management department;
2 to the city real estate or township village enterprises, such as the building of the plant mortgage, for the local people's government at or above the county level departments;
3 in the case of forest trees, the competent department of forest trees at or above the county level shall;
4 the registration department of aircraft, ships and vehicles, as a means of transport;
5 to the enterprise equipment and other movable property mortgage, for the property is located in the industrial and commercial administrative department.
Four, the registration of collateral should provide information
The following documents or copies shall be provided: 1 main contract and mortgage contract; ownership or use right of the 2 collateral.
Five, the order between the mortgage
1 the mortgage contract shall come into force in accordance with the order of registration of the mortgaged property. The order of the same, in accordance with the proportion of debt settlement;
2 mortgage contract from the date of entry into force and are not handled collateral registration, in accordance with the time of entry into force of the mortgage order of the order of payment. If the mortgage contract is signed by the same time, in accordance with the proportion of debt to pay off;
ThreeThe mortgage contract has entered into force on the date of signing and has been registered with the collateral, in accordance with the order of registration of collateral liquidation. Registration time is the same, in accordance with the proportion of debt settlement;
4 mortgage contract since the date of entry into force and only a part of the collateral for the registration of collateral, has been registered for the registration of the first outstanding.
[pledge]
First, the kind of pledge
According to the different kinds of quality, can be divided into two kinds of pledge of movable property and pledge of rights.
Two, to allow the right to pledge
1 drafts, checks, promissory notes, bonds, certificates of deposit, warehouse receipts, bills of lading;
2 according to the law can be transferred shares, stocks
3 the right to exclusive use of a trademark, the right to exclusive use of a trademark, the right to property in the copyright;
4 other rights that can be pledged according to law.
Three, pledge and mortgage difference
1 the object of mortgage and pledge is different: the object of the mortgage is real estate, and the object of the pledge is the movable property and the right;
2 mortgage and pledge subject matter whether the transfer of possession has different provisions: mortgage subject matter is not the transfer of possession, still by the mortgagor and possession, use, income, the pledge of the delivery of the object to Pawnee, real estate to deliver possession, rights to deliver the right certificate.
[lien]
One, when you can exercise the right to lien
The creditor and the debtor shall stipulate in the contract that the debtor shall perform the obligations within the time limit of not less than 2 months after the creditor's lien on the property. If the creditor and the debtor are not agreed upon in the contract, the creditor shall determine the period of 2 months after the lien of the property, and shall notify the debtor to perform the debt within the time limit.
Two, which has a lien on the creditors of the contract
Because of the creditor's rights of the contract, the contract of carriage, the processing of the contract of the contract, the debtor fails to perform the debt, the creditor has the right of lien. Other contracts that may be retained by the law shall be applicable to the provisions of this law. The parties may stipulate in the contract that the.
[down]
First, the limit of the amount of deposit
The amount of the deposit shall be agreed upon by the parties, but shall not exceed 20% of the amount of the principal contract.
Two, the difference between the deposit and advance payment
In the performance of the contract, the advance payment has become a part of the accounts payable; if the contract is not performed, the advance payment shall be refunded to the parties to the payment of the advance payment.
Deposit is differentIt is a kind of guarantee way in our country "guarantee law". After the debtor's performance of the debt, the deposit shall be offset against the price or recovered. If one party fails to perform the contractual obligations, it shall not have the right to request the return of the deposit; if the party that receives the deposit fails to perform the contractual obligations, it shall double the return of the deposit.
Reproduced from the Internet