The issue of the guarantor as a third party in the proceedings

Hello. In the course of litigation, if a third party joins the handling of the creditor's rights and debts between the plaintiff and the defendant and provides guarantee for the performance of the debt, as long as the three parties voluntarily reach a settlement agreement, the intention is genuine, the content of the agreement is lawful, and the guarantee act complies with the provisions of the Guarantee Law, the settlement agreement consisting of the main contract for repaying debts and the subordinate contract for security shall be given legal effect. In practice, some people's courts list the litigation status of third parties as co-defendants, some people's courts as third parties, and some people's courts do not specify it in the mediation document, and in accordance with article 85 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Enforcement Work of the People's Courts (for Trial Implementation)" on "during the trial of a case, the guarantor provides a guarantee for the person subject to enforcement, and the people's court fails to take preservation measures or lift the preservation measures against the property of the person subject to enforcement, After the conclusion of the case, if the person subject to enforcement has no property to enforce or his property is insufficient to pay off the debt, even if the guarantor's liability is not determined in the effective legal documents, the people's court has the right to rule on the enforcement of the guarantor's property within the scope of the guarantee liability", and rule that the third party shall bear the guarantee liability for the person subject to enforcement.

Since a third party provides security after the commencement of the plaintiff and the defendant's lawsuit, and the secured debt arises after the plaintiff sues the lawsuit and does not exist at the time of the plaintiff's lawsuit, it is not appropriate to list the third party as a co-defendant. Paragraph 2 of Article 56 of the Civil Procedure Law of the People's Republic of China stipulates: "Where a third party does not have the right to make an independent claim for the subject matter of the litigation between the parties, but has a legal interest in the outcome of the case, he may apply to participate in the litigation, or the people's court may notify him to participate in the litigation."

A third party who is judged by a people's court to bear civil liability has the procedural rights and obligations of the parties." According to this article, if the third party meets the legal characteristics of not having an independent claim, it may be listed as a third party to assume the guarantee liability and serve a mediation document on it, which is bound by the legal effect of the effective mediation agreement. If it is not listed as a third party to be liable, the third party may be ruled to bear the guarantee liability in accordance with the above provisions.

Third-party guarantors are divided into general guarantees and joint and several liability guarantees. Joint and several liability guarantees are more common. In the event that the debtor fails to perform its obligations, the creditor has the right to file a lawsuit against the debtor and the guarantor as the first defendant and the second defendant at the same time, and the guarantor is the defendant at this time.

However, the guarantor has the right to continue to recover from the debtor. The guarantor at this time is the plaintiff!

The guarantor may file a lawsuit as a plaintiff, as long as the statutory requirements for filing a lawsuit are met, that is, the plaintiff must have a direct interest in the case, a clear defendant, and a specific claim and facts and reasons. A party may prepare a complaint and submit the evidence related to the case to the people's court with jurisdiction.

Article 387 of the Civil Code: Where a creditor needs security in order to ensure the realization of its creditor's rights in civil activities such as lending and trading, it may establish a security interest in accordance with the provisions of this Law and other laws. Where a third party provides security to the creditor for the debtor, the debtor may be required to provide a counter-guarantee. The provisions of this Law and other laws shall apply to counter-guarantees.

The counter-guarantor can be a third party. A counter-guarantee refers to a guarantee that a third party guaranteeing the debtor is required to provide by the debtor in order to ensure the realization of its right of recovery. At the expiration of the period for repayment of debts, when the debtor fails to perform its debts, the third party shall assume the guarantee liability, and the third party shall become a creditor of the debtor, and the third party shall have the right to recover from the debtor for the debts it has paid off on behalf of the debtor.

Article 392 of the Civil Code Where the secured creditor's right is secured by both a real and a personal security, and the debtor fails to perform the due debt or the parties agree to realize the security interest, the creditor shall realize the creditor's right in accordance with the agreement; If there is no agreement or the agreement is not clear, and the debtor provides security for the thing, the creditor shall first realize the creditor's right on the security of the thing; If a third party provides security in kind, the creditor may realize the creditor's right on the security in rem, and may also request the guarantor to bear the guarantee liability. The third party providing the guarantee has the right to recover from the debtor after assuming the guarantee liability.

Summary. Hello, legal analysis: is the third party who bears the guarantee liability the guarantor?

Yes, if a third party assumes the guarantee liability, the third party is the guarantor. According to the Guarantee Law of the People's Republic of China, a guarantor refers to a citizen, legal person and other organization that bears the guarantee liability of a guarantor, mortgagor, pledgee, guarantor insurer, etc.

If the debtor fails to perform the due debt, the guarantor shall bear the corresponding guarantee liability. Therefore, if a third party bears the statutory guarantee liability to the creditor for the debtor, this situation is a guarantee relationship, and the third party is the guarantor. The common situations in which a third party bears the guarantee liability are:

1.Provide a guarantee guarantee for the debtor and become a guarantor. 2.

Provide collateral security for the debtor and become a mortgagor. 3.Provide pledge guarantee for the debtor and become the pledgee.

4.Purchase surety insurance for the debtor and become a surety insurer.

Hello, legal analysis: Is the third party who bears the guarantee liability the guarantor: Yes, if the third party bears the guarantee liability, the third party is the guarantor.

According to the Guarantee Law of the People's Republic of China, a guarantor refers to a citizen, legal person and other organization that bears the guarantee liability of a guarantor, mortgagor, pledgee, guarantor insurer, etc. If the debtor fails to perform the due debt, the guarantor shall bear the corresponding guarantee liability.

Therefore, if a third party bears the statutory guarantee liability to the creditor for the debtor, this situation is a guarantee relationship, and the third party is the guarantor. The common situations in which a third party bears the guarantee liability are:1

Provide a guarantee guarantee for the debtor and become a guarantor. 2.Provide collateral mortgage guarantee for the debtor's banquet and become the mortgagor.

3.Provide pledge guarantee for the debtor and become the pledgee. 4.

Purchase surety insurance for the debtor and become a surety insurer.

Legal basis: Article 388 of the Civil Code of the People's Republic of China [Relationship between the Guarantee Contract and the Main Contract] To establish a security interest, a security contract shall be concluded in accordance with the provisions of this Law and other laws. Guarantee contracts include mortgage contracts, pledge contracts and other contracts with security functions.

The guarantee contract is a subordinate contract to the principal debt settlement contract. If the principal creditor's rights and debts contract is invalid, the guarantee contract shall be invalid, except as otherwise provided by law. After the guarantee contract is confirmed to be invalid, if the debtor, guarantor and creditor are at fault, they shall each bear the corresponding civil liability according to their fault.

Article 681:[Definition of Guarantee Contract]A guarantee contract is a contract in which the guarantor and the creditor agree that the guarantor will perform the debt or assume responsibility when the debtor fails to perform the due debt or when the circumstances agreed upon by the parties occur.

Summary. Hello, legal analysis: is the third party who bears the guarantee liability the guarantor?

A third party who bears the guarantee liability is not a guarantor. 1.According to the Security Law of the People's Republic of China, a guarantor refers to a person who provides security to creditors for the debtor and assumes responsibility when the debtor fails to perform its obligations.

2.If the third party has not signed a guarantee contract in advance and has not expressly agreed to bear the liability for auxiliary repayment of the debt, it does not belong to the guarantor. 3.

However, if the third party voluntarily assumes the debtor's repayment responsibility and pays the debt, it can be recovered from the debtor. 4.If the third party assumes the liability at the request of the creditor, the third party obtains the corresponding claim and can seek recourse from the debtor.

5.If the third party has no legal obligation but voluntarily assumes the liability, it can require the debtor to repay according to the relevant provisions of "management without cause". 6.

Therefore, whether it is a guarantor depends on whether there is a clear guarantee relationship between the parties, and the nature of the third party's liability needs to be specifically analyzed. 7.Generally speaking, ex post facto liability is not the same concept as prior agreed guarantee, and needs to be treated differently.

Hello, legal analysis: is the third party who bears the guarantee liability a guarantor: the third party who bears the guarantee liability is not a guarantor.

1.According to the Security Law of the People's Republic of China, a guarantor refers to a person who provides security to creditors for the debtor and assumes responsibility when the debtor fails to perform its obligations. 2.

If the third party does not sign a guarantee contract in advance and does not expressly agree to bear the liability for auxiliary repayment of the debt, it is not a guarantor. 3.However, if the third party voluntarily assumes the debtor's repayment responsibility and pays the debt, it can be recovered from the debtor.

4.If the third party assumes the liability at the request of the creditor, the third party obtains the corresponding claim and can seek recourse from the debtor. 5.

If the third party has no legal obligation but voluntarily assumes the liability, it can require the debtor to repay according to the relevant provisions of "management without cause". 6.Therefore, whether it is a guarantor depends on whether there is a clear guarantee relationship between the parties, and the nature of the third party's liability needs to be specifically analyzed.

7.Generally speaking, ex post facto liability is not the same concept as prior agreed guarantee, and needs to be treated differently.

Legal code infiltration: Article 6 and Article 19 of the Criminal Procedure Law of the People's Republic of China The guarantor must meet the following conditions: (1) not be implicated in the case; (2) Have the ability to perform guarantee obligations; (3) enjoy political rights, and personal freedom is not restricted; (4) Have a fixed residence and income.