I would like to ask about China s guarantee law, what are the guarantee methods stipulated in the G

The legal forms of security in China are: guarantee, mortgage, pledge, lien and deposit guarantee, of which only the lien belongs to the statutory security right, and the creditor who meets the legal conditions does not need the agreement of the parties to have the right of lien, so the law does not require it to be in writing, and several other kinds of security are required to be agreed in writing, "Guarantee Law:"

Article 13 The guarantor and the creditor shall conclude a guarantee contract in writing.

Article 38 The mortgagor and the mortgagee shall conclude a mortgage contract in writing.

Article 64 The pledgor and the pledgee shall conclude a pledge contract in writing.

Article 90 The deposit shall be agreed upon in writing. ......

It should be noted, however, that even if the law stipulates that it should be in writing, the absence of a security contract in writing is not necessarily invalid. According to Article 36 of the Contract Law, "if a contract is concluded in written form as provided by laws, administrative regulations or agreed by the parties, and the parties do not use the written form but one party has performed its main obligations and the other party accepts it, the contract shall be established." ”

Article 13 The guarantor and the creditor shall conclude a guarantee contract in writing.

Written form is required, please see the note.

Guarantee Law of the People's Republic of China.

Adopted at the 14th Session of the Standing Committee of the Eighth National People's Congress on June 30, 1995; promulgated by Order No. 50 of the President of the People's Republic of China on June 30, 1995, effective as of October 1, 1995).

Article 13 The guarantor and the creditor shall conclude a guarantee contract in writing.

Article 23 During the guarantee period, if the creditor permits the debtor to transfer debts, the written consent of the guarantor shall be obtained, and the guarantor shall no longer bear the guarantee liability for the debts transferred without its consent.

Article 24 Where the creditor and the debtor agree to modify the main contract, the written consent of the guarantor shall be obtained, and the guarantor shall no longer bear the guarantee liability without the written consent of the guarantor. If the guarantee contract provides otherwise, it shall be in accordance with the agreement.

Article 27 Where the guarantor guarantees the continuous occurrence of creditor's rights in accordance with the provisions of Article 14 of this Law, and does not stipulate the guarantee period, the guarantor may terminate the guarantee contract at any time by notifying the creditor in writing, but the guarantor shall bear the guarantee liability for the creditor's rights incurred before the notice is made to the creditor.

Not only the guarantee contract, but also the mortgage, pledge, deposit, etc., all need to be concluded in writing.

Legal analysis: The Civil Code specifically stipulates that if a creditor needs to bear a large amount of insurance in order to ensure the realization of its creditor's rights in civil activities such as lending, trading and other civil activities, 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. Counter-guarantees shall be governed by the provisions of this Law and other laws.

Legal basis: Article 241 of the Civil Code of the People's Republic of China The owner has the right to create a usufructuary right and a security interest in his immovable or movable property. The exercise of rights by the usufructuary right holder or security right holder shall not harm the rights and interests of the owner.

The Guarantee Law has become invalid, and according to the provisions of the Civil Code, the forms that the guarantee contract should take include: the form of a master-slave contract; the form of the master-slave clause; The form of unilateral issuance of a letter of guarantee by the guarantor; In the form of the guarantor's signature or seal as the guarantor on the main contract.

Article 686 of the Civil Code of the People's Republic of China provides that the forms of guarantee include general guarantee and joint and several liability. If the parties do not agree on the form of guarantee in the guarantee contract or the agreement is not clear, they shall bear the guarantee liability in accordance with the general guarantee. Article 394 of the Civil Code of the People's Republic of China provides that if the debtor or a third party does not transfer possession of the property but mortgages the property to the creditor in order to guarantee the performance of the debt, the debtor fails to perform the due debt or the mortgage rights are realized as agreed by the parties, and the creditor has the right to be repaid in priority for the property.

The debtor or third party provided for in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property provided for by the guarantee is the mortgaged property.

Article 394 of the Civil Code of the People's Republic of China stipulates that if the debtor or a third party does not transfer the possession of the property and mortgages the property to the creditor in order to guarantee the performance of the debt, the debtor fails to perform the due debt or the creditor has the right to pay the property in priority if the debtor fails to perform the due debt or the mortgage rights are realized as agreed by the parties.

The debtor or third party provided for in the preceding paragraph is the mortgagor, the debtor is the mortgagee, and the property provided for the security is the mortgaged property.

Article 425 stipulates that if the debtor or a third party pledges its movable property to the creditor for the purpose of guaranteeing the performance of the debt, and the debtor fails to perform the due debt or the pledge is realized as agreed by the parties, the creditor has the right to be repaid in priority in respect of the movable property.

The debtor or third party provided for in the preceding paragraph is the pledgee, the creditor is the pledgee, and the movable property delivered is the pledged property.

1) Bills of exchange, promissory notes, checks;

2) Bonds and certificates of deposit;

3) Warehouse receipts and bills of lading;

4) The first share and equity that can be transferred;

5) Property rights in intellectual property rights such as the exclusive right to use registered trademarks, patent rights, and copyrights that can be transferred;

vi) existing and future accounts receivable;

7) Other property rights that may be pledged by laws and administrative regulations.

Article 447 stipulates that if the debtor fails to perform the debts due, the creditor may retain the debtor's movable property that is already in lawful possession and has the right to be repaid in priority for the movable property.

The creditor provided for in the preceding paragraph is the lienholder, and the movable property in possession is the property in lien.

Article 681 stipulates that 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 the circumstances agreed by the parties occur.

Civil Code of the People's Republic of China

Article 586:The parties may agree that one party shall pay a deposit to the other party as security for the obligatory rights. The deposit contract is concluded when the deposit is actually paid.

The amount of the deposit shall be agreed upon by the parties; However, it shall not exceed 20% of the amount of the subject matter of the main contract, and the excess part shall not have the effect of a deposit. If the actual amount of the deposit is more or less than the agreed amount, it shall be deemed to have changed the agreed amount of the deposit.

There are five types of guarantees stipulated in the Guarantee Law: 1. Guarantee: Guarantee refers to the act of agreeing between the guarantor and the creditor that when the guarantor and the debtor fail to perform the debt, the guarantor shall perform the obligations of the main contract or assume responsibility in accordance with the agreement.

2. Mortgage: Mortgage means that the debtor or a third party does not transfer the possession of the mortgaged property and uses the mortgaged property as security for the creditor's rights. When the debtor fails to perform its obligations, the creditor has the right to be repaid in priority in accordance with the provisions of the Guarantee Law at the discount of the mortgaged property or the price of the auction or sale of the property.

3. Pledge: Pledge means that the debtor or a third party transfers its movable property to the creditor for possession, or hands over its property rights to the creditor's control, and uses the movable property or property rights as security for the creditor's rights. When the debtor fails to perform its obligations, the creditor shall have the right to be repaid in priority with the price of the movable property or property right in accordance with the provisions of the Security Law, or at the price of auction or sale of the movable property or property right.

4. Lien: Lien refers to the fact that in the custody contract, transportation contract or processing contract, the creditor takes possession of the debtor's movable property in accordance with the contract, and the debtor fails to perform the debt within the time limit agreed in the contract, the creditor has the right to retain the property in accordance with the provisions of the Security Law, and the property is discounted or the property is auctioned or sold in priority. 5. Deposit:

Deposit refers to the act of one of the parties to the contract paying a certain amount of money to the other party in advance in order to guarantee the performance of the contract. After the debtor performs the debt, the deposit shall be offset against the price or recovered. If the party who pays the deposit fails to perform the debts agreed in the contract, it has no right to return the deposit; If the party receiving the deposit fails to perform the debts agreed in the contract, it shall return the deposit twice.

Among the above five types of security, lien is a statutory security method, that is, the creditor exercises the right of retention in accordance with the provisions of the law without the need for agreement between the parties. The other four types of security need to be agreed between the parties and are the security methods of the agreement.

According to Article 2 of the Security Law of the People's Republic of China, the types of security are as follows: guarantee, mortgage, pledge, lien and deposit.

Guarantees, mortgages, pledges, liens, and deposits.

The forms of guarantee stipulated in the Guarantee Act are:

a) General warranties;

2) Joint and several liability guarantees.

Article 17 Where the parties agree in the guarantee contract that when the debtor fails to perform its obligations, the guarantor shall bear the guarantee liability, it is a general guarantee.

The guarantor of a general guarantee may refuse to bear the guarantee liability to the creditor before the main contract dispute has not been tried or arbitrated, and the debtor's property is still unable to perform its obligations in accordance with the law.

In any of the following circumstances, the guarantor shall not exercise the rights provided for in the preceding paragraph:

1) The debtor's domicile is changed, causing major difficulties for the creditor to demand that the debtor perform the debt;

2) The people's court accepts the debtor's bankruptcy case and suspends the enforcement procedure;

3) The guarantor waives the rights provided for in the preceding paragraph in writing.

Article 18 Where the parties stipulate in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, it shall be a joint and several liability guarantee.

If the debtor of the joint and several liability guarantee fails to perform the debt upon the expiration of the debt performance period specified in the main contract, the creditor may require the debtor to perform the debt, and may also require the guarantor to bear the guarantee liability within the scope of the guarantee.

Article 19 Where the parties have not agreed on the method of guarantee or the agreement is not clear, they shall bear the guarantee liability in accordance with the joint and several liability guarantee.

Article 20 The guarantor of the general guarantee and the joint and several liability guarantee shall enjoy the debtor's right of defense. If the debtor waives the right to defend against the debt, the guarantor still has the right to defend the debt.

The right of defense refers to the right of the debtor to exercise the right of claim against the creditor according to statutory reasons when the creditor exercises the creditor's right.

Note: Guarantee Law of the People's Republic of China.

This Law is enacted in order to promote financial integration and commodity circulation, ensure the realization of creditor's rights, and develop the socialist market economy. Adopted at the 14th Session of the Standing Committee of the Eighth National People's Congress on June 30, 1995, promulgated by Order No. 50 of the President of the People's Republic of China on June 3, 1995, and effective as of October 1, 1995.

Guarantees, mortgages, pledges, liens, and deposits.

Guarantee Law of the People's Republic of China.

Article 2 Where a creditor needs to guarantee the realization of its creditor's rights in the form of a guarantee in economic activities such as lending, trading, transportation of goods, and processing contracting, it may create a guarantee in accordance with the provisions of this Law.

The forms of security provided for in this Law are guarantees, mortgages, pledges, liens and deposits.

The purpose of the Guarantee Law is to promote financial integration and commodity circulation, ensure the realization of creditor's rights, and develop a socialist market economy.

There are five main ways of contract security: guarantee, mortgage, pledge, lien and deposit.

The counter-guarantee is made by"debtor"or"Third person"Guarantee provided to the guarantor.

The counter-guarantee method does not include liens and deposits.

When 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. That is, to bear the liability for contractual negligence as stipulated in the Contract Law.

After the termination of the main contract, the guarantor shall still bear the guarantee liability for the civil liability to the debtor, unless otherwise agreed in the guarantee contract.

Where the legal representative or responsible person of a legal person or other organization concludes a guarantee contract beyond his authority, the act of the representative is valid unless the counterparty knows or should know that it has exceeded its authority.

In any of the following circumstances, the guarantor shall not be liable for the empty guarantee certificate: the parties to the main contract collude to defraud the guarantor into providing the guarantee; Where the creditor of the main contract uses fraud, prudent coercion, or other means to cause the guarantor to provide a guarantee contrary to its true intentions; Where the debtor of the main contract uses fraud, coercion or other means to cause the guarantor to provide the guarantee contrary to its true intentions, and the creditor knows or should know the fact of fraud or coercion.

What are the types of guarantees under the Guarantee Law?

The security methods stipulated in the Guarantee Law, mortgage, pledge, lien, and deposit.

1. Scope of guarantee: main creditor's right and interest, liquidated damages, damages and expenses for realizing creditor's rights. If the guarantee contract provides otherwise, it shall be in accordance with the agreement.

If the parties have not agreed on the scope of the guarantee or the agreement is not clear, the guarantor shall bear the guarantee liability for all debts.

2. Scope of mortgage guarantee: main creditor's right and interest, liquidated damages, damages and expenses for realizing the mortgage right. If the mortgage contract stipulates otherwise, follow the agreement.

3. Scope of pledge guarantee: main creditor's right and interest, liquidated damages, damages, pledge storage costs and pledge realization costs. Where the pledge contract provides otherwise, follow the agreement.

4. Scope of lien guarantee: main creditor's right and interest, liquidated damages, damages, lien custody fees and lien realization costs.

What is the Guarantee Act? Through the detailed sharing of this article, after learning, you should have an understanding of the security law, it is indeed a legal law in our country that is balanced and regulated, it promotes economic development at the same time, but also guarantees the interests of creditors, however, not all guarantors need to bear the guarantee liability. Good bye.