If the guarantee loan contract does not stipulate the repayment time, how to determine the guarantee

One view was that, since a request for debt settlement could be made at any time, there should be no time lag between the formation of the contract and the expiration of the performance period, which expired at the time of the formation of the contract.

Another view was that the "assertion at any time" was a flexible period determined by the parties based on their trust in each other, and that the principle was "raised", which had the effect of interrupting the reminder of the expiration of the period of mutual reminder between the parties. The performance period expires when the debtor repays or when the creditor makes a reminder of repayment.

A third view is that the principle of readiness is focused on "giving the other party the necessary time to prepare". Contract legislation respects the autonomy of the parties, but in order to prevent the parties from arbitrarily proposing to bind, that is, "the other party should be given the necessary time to prepare". This is the time when the debtor's repayment expires.

Therefore, the performance period expires on the date of expiration of the "necessary preparation time".

One opinion is that this case is a joint and several liability guarantee, and the guarantor's guarantee liability extends to the period of the principal debt and the limitation period. Ma sued within the statute of limitations, and the three guarantors should bear the responsibility of guarantee. Another opinion is that the guarantee, as a personal guarantee, is a legal relationship based on mutual trust between the parties, but it should also be limited by the agreement and the statutory guarantee period, therefore, if Ma sues after the expiration of the guarantee period of the three people, the three should not bear the guarantee liability, and the guarantee period is not related to the statute of limitations.

The third opinion is that: Liu and Gao are subject to the statutory guarantee period, and Ma does not claim rights within the statutory period, and their guarantee liability is exempted. Chen not only agreed on the guarantee period, but also paid part of the loan as a member of the current village committee, and his payment behavior allowed the guarantee period to be extended, which was linked to the statute of limitations, so Chen should still bear the guarantee liability.

In the author's opinion, there is a clear difference between the statute of limitations and the guarantee period in terms of nature and effectiveness, and there is no correlation between the two. In terms of nature, the statute of limitations is a mandatory norm, a time limit for the right holder to exercise its rights as prescribed by law, and a statutory period during which no party can change its length and calculation method through agreement or other autonomous acts. Article 31 of the Interpretation of the Guarantee Law also clearly stipulates that "the guarantee period shall not be interrupted, suspended or extended for any reason".

From the perspective of effectiveness, the limitation period is a period of time for the right holder to request judicial protection when its rights are infringed, while the guarantee period is a time limit agreed by the parties to ensure whether the creditor's right is effective. Therefore, after the completion of the limitation period, the court should still accept the case if the substantive rights of the obligee have not been lost, but the obligor has the right to defend against the statute of limitations, and during the guarantee period, if the creditor does not file a claim against the guarantor, after the completion of the guarantee period, the guarantee claim is not established, and the guarantor's guarantee liability is not effective, so as to achieve the legal fact that the right to claim for the guarantee debt is extinguished, and the court should not accept it. Therefore, whether it is a general warranty or a joint and several liability guarantee, the applicable guarantee period is a fixed period, without suspension, interruption or extension, which meets the provisions of the exclusion period and has no connection with the statute of limitations.

Ma did not claim rights against Liu and Gao during the guarantee period, and the two should not bear the guarantee liability. Although the village committee's act of making payment has extended the statute of limitations, it only extends the statute of limitations for the principal debt, and cannot be used as a basis for claiming guarantee liability against the second guarantor. Ma asserted his rights during Chen's guarantee period, and Chen should bear the guarantee liability to Ma within the statute of limitations.

Legal analysis: if there is an agreement on the guarantee period, it shall be in accordance with the agreement, and if the agreement is not clear, the guarantee period shall be 2 years from the date of expiration of the performance period of the main debt; If there is no agreement on the guarantee period, the guarantee period shall be 6 months from the date of expiration of the performance period of the principal debt. If there is no agreement in the main contract on the time limit for the performance of the principal debt or the agreement is unclear, the guarantee period shall be calculated from the date of expiration of the grace period for the creditor to require the debtor to perform its obligations.

Legal basis: Article 393 of the Civil Code of the People's Republic of China In any of the following circumstances, the security interest shall be extinguished:

1) the extinguishment of the principal creditor's right;

2) the realization of a security interest;

3) the creditor waives the security interest;

4) Other circumstances in which the law provides for the extinction of the security interest.

Legal analysis: The loan contract does not stipulate the repayment period, and the guarantee period is calculated from the date of expiration of the period when the creditor requires the debtor to perform its obligations. If the guarantee period stipulated in the guarantee contract is earlier than or equal to the performance period of the principal debt, it shall be deemed that there is no agreement, and the guarantee period shall be six months from the date of expiration of the performance period of the principal debt.

Legal basis: Article 682 of the Civil Code of the People's Republic of China A guarantee contract is a subordinate contract of the main creditor's rights and debts contract. Where the principal creditor's rights and debts contract is invalid, the guarantee contract is invalid, except as otherwise provided by law.

After the guarantee contract is confirmed to be invalid, if the debtor, the guarantor and the creditor are at fault, they shall each bear the corresponding civil liability according to their fault.

The loan contract does not stipulate a repayment period, and the guarantee period is six months from the date of expiration of the grace period for the creditor to require the debtor to perform its obligations. Therefore, if the creditor fails to assert against the guarantor that it bears the guarantee liability within the scope of the guarantee six months after the grace period for the creditor to require the debtor to perform its obligations, the guarantor will no longer bear the guarantee liability.

1. How to calculate the overdue interest of the loan without an agreed repayment period.

Article 670 of the Civil Code [Interest on Loans shall not be deducted in advance] The interest on loans shall not be deducted from the principal in advance. If the interest is deducted from the principal in advance, the loan shall be returned according to the actual amount borrowed and the interest shall be calculated.

Article 671:[Consequences of Lender's Failure to Provide Loans as Agreed and Borrowers' Failure to Collect Loans as Agreed] Where a lender fails to provide loans on the agreed date and amount, causing losses to the borrower, it shall compensate for the losses.

If the borrower fails to collect the loan on the agreed date and amount, it shall pay interest on the agreed date and amount.

Article 674:[Time Limit for Borrower to Pay Interest]The borrower shall pay interest within the agreed time limit. Where there is no agreement on the time limit for the payment of interest or the agreement is not clear, and it is still uncertain in accordance with the provisions of Article 501 of this Law, and the loan period is less than one year, it shall be paid together with the return of the loan; If the loan period is more than one year, it shall be paid in a vertical section at the end of each year, and if the remaining period is less than one year, it shall be paid together with the return of the loan.

Article 680 [Prohibition of Usurious Lending and Determination of Interest on Borrowing] Usurious lending is prohibited, and the interest rate on borrowings must not violate the relevant provisions of the State.

If there is no agreement on the payment of interest in the loan contract, it shall be deemed to have no interest.

If the agreement on the payment of interest in the loan contract is not clear and the parties cannot reach a supplementary agreement, the interest shall be determined in accordance with factors such as the local area or the parties' transaction methods, trading habits, and market interest rates; Where natural persons borrow money between themselves, it is deemed that there is no interest.

2. How long is the duration of the guarantee contract?

The term of the guarantee contract shall be the term agreed by the parties, but shall not be earlier than or expire at the same time as the performance period of the principal debt; If there is no agreement between the parties or the agreement is not clear, it is six months from the date of expiration of the performance period of the principal debt.

According to the law, if the guarantor of a joint and several liability guarantee and the creditor do not agree on the guarantee period, the creditor has the right to demand that the guarantor bear the guarantee liability within six months from the date of expiration of the debt performance period. If the creditor does not require the guarantor to bear the guarantee liability during the guarantee period agreed in the contract and the guarantee period specified in the preceding paragraph, the guarantor shall be exempted from the guarantee liability. Article 667 of the Civil Code A loan contract is a contract in which the borrower borrows money from the lender and returns the loan at maturity and pays interest.

Article 668:The loan contract shall be in written form, unless otherwise agreed upon between natural persons. The content of the loan contract generally includes the type of loan, currency, purpose, amount, interest rate, term and repayment method. Article 669:When concluding a loan contract, the borrower shall, in accordance with the requirements of the lender, provide the true information about the business activities and financial status related to the loan.

If there is no agreement in the main contract on the performance period of the principal debt or the agreement is unclear, the guarantee period shall be calculated from the date of expiration of the grace period for the creditor to request and the debtor to perform its obligations.

If there is an agreement on the guarantee period, it shall be in accordance with the agreement, and if the agreement is not clear, the guarantee period shall be 2 years from the date of expiration of the performance period of the principal debt; If there is no agreement on the guarantee period, the guarantee period shall be 6 months from the date of expiration of the performance period of the principal debt.

1. How to determine that the mortgage guarantee period of the Civil Code is longer than the term of the principal debt.

The Civil Code does not expressly stipulate whether a mortgage has a term or not. In order to protect the guarantor's own interests, the guarantee period should ideally be equivalent to the term of the main debt.

1) The Civil Code clearly stipulates whether the guarantee has a time limit, but the Civil Code does not explicitly stipulate whether the mortgage has a time limit. From the analysis of the relevant legal provisions, we can understand that if the claim secured by the mortgage is extinguished, then the mortgage is also extinguished.

2) The mortgage right is not subject to the extinguishment statute of limitations, which means that the debtor can exercise the mortgage right at any time after the extinction of the creditor's right. This is too harsh for mortgagors. Moreover, the mortgagee has been neglecting to exercise its rights for a long time, and the law does not seem to need special protection for it.

As a result, the legislation of many countries imposes certain restrictions on the exercise of the mortgage right after the extinction of the principal claim.

3) The Civil Code provides for a statute of limitations, which only applies to the right to claim when the right is infringed, so the mortgage right is not extinguished by the expiration of the statute of limitations. However, when the statute of limitations has expired for the principal claim secured by the mortgage, from a legal point of view, our law should refer to the legislation of the above-mentioned countries to limit the validity period of the mortgage right.

Relevant legal provisions.

Article 393 of the Civil Code [Reasons for Extinction of Security Interest] In any of the following circumstances, the security interest shall be extinguished:

1. The main creditor's right is extinguished;

2. Realization of security interest;

3. The creditor waives the security interest;

4. Other circumstances under which the law provides for the extinction of the security interest.

Article 419:[Duration of Mortgage Right]The mortgagee shall exercise the mortgage right within the limitation period of the principal creditor's right; and where it is not exercised, the people's courts will not protect it.

2. The guarantor's guarantee period.

1) Article 693 of the Civil Code.

If the guarantor of a general guarantee and the creditor have not agreed on the guarantee period, the guarantee period shall be six months from the date of expiration of the performance period of the principal debt.

If the creditor fails to file a lawsuit or apply for arbitration against the debtor during the guarantee period agreed in the contract and the guarantee period specified in the preceding paragraph, the guarantor shall be exempted from the guarantee liability; Where the creditor has already filed a lawsuit or applied for arbitration, the provisions on the interruption of the statute of limitations shall apply to the guarantee period.

2) Article 693:Where the guarantor of a joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor has the right to request the guarantor to bear the guarantee liability within six months from the date of expiration of the debt performance period.