A question relating to security law 20

Standard Answer: d

Analysis: This question examines the relationship between the change of the main contract and the assumption of warranty liability. Article 34 of the Guarantee Law provides:

If 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. In this case, C did not give his consent in writing.

1。According to Article 19 of the Guarantee Law, if the parties have not agreed on the guarantee method or the agreement is not clear, they shall bear the guarantee liability in accordance with the joint and several liability guarantee. C is the guarantor of joint and several liability.

2.According to paragraph 2 of Article 30 of the Interpretation of the Security Law, if the creditor and the debtor have changed the performance period of the main contract, without the written consent of the guarantor, the guarantee period shall be the period agreed in the original contract or prescribed by law.

3。According to Article 26 of the Guarantee Law, if the guarantor and the creditor of the joint and several liability guarantee 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.

According to 2 and 3, the guarantee period of C's debt to A is 6 months from the expiration of the original owner's claim.

4。Since the guarantor's guarantee period has exceeded when A matures (the original principal claim has expired for one year), the guarantor no longer bears any guarantee liability. The answer is D

The Security Law is a law enacted and promulgated by the national legislature of the People's Republic of China, which aims to regulate and protect the legitimate rights and interests of guarantee activities and protect the legitimate rights and interests of creditors. The following is the full text of the latest "Guarantee Law of the People's Republic of China": Chapter 1 General Provisions Article 1 This Law is formulated in order to regulate and protect the legitimate rights and interests of guarantee activities and protect the legitimate rights and interests of creditors.

Article 2 The term "guarantee" as used in this Law refers to the act of the guarantor assuming debts or providing property guarantees to the creditor when the debtor fails to perform its obligations. "Collateral" as used in this Law refers to the property provided by the guarantor. Article 3 The guarantee shall comply with the laws, administrative regulations and the provisions of the financial regulatory authorities, and follow the principles of good faith, fairness and reasonableness, voluntary negotiation and controllable risks.

Article 4 The guarantor shall have the qualifications to engage in guarantee activities, register or file in accordance with the law, and bear the corresponding legal responsibilities. Article 5 The State shall protect the legitimate rights and interests of the guarantor and the debtor, and protect the work safety and lawful income of the guarantor. Article 6 The debtor shall perform its debts, and the guarantor shall abide by the guarantee commitment.

Article 7 The guarantee liability borne by the guarantor shall be clearly stated in writing, and the guarantor and the creditor shall sign a guarantee contract or other guarantee agreement. Article 8 The debtor and the guarantor may agree on the guarantee period, guarantee method, guarantee scope, guarantee conditions, guarantee liability and guarantee fee. Article 9 **, social organizations, natural persons, etc. may provide guarantees.

Assignment of security refers to the right of the debtor or a third party to transfer the ownership and other rights of the subject matter of the security to the guarantor in order to guarantee the debtor's debt, so that the guarantor can return the subject matter of the security to the debtor or a third party after the debt is repaid within the scope of the purpose of the guarantee, and the guarantor can be repaid for the subject matter if the debt is not performed. In practice, it is usually manifested that when the two parties sign a private loan contract, the two parties sign a sales contract, stipulating that the borrower will sell the subject matter to the lender, and when the borrower is unable to repay the debt when due, the ownership of the subject matter belongs to the lender, and if the borrower is able to repay the principal and interest at maturity, the subject matter will be returned to the borrower. Article 24 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases stipulates that "if a party signs a sales contract as a guarantee for a private lending contract, and the borrower fails to repay the loan after the loan expires, and the lender requests to perform the sales contract, the people's court shall hear the case in accordance with the legal relationship of private lending and explain to the parties the modification of the litigation claim."

If the parties refuse to make the change, the people's court shall rule to reject the lawsuit. If the borrower fails to perform the monetary debts determined by the effective judgment after the judgment rendered in accordance with the trial of the legal relationship of private lending takes effect, the lender may apply for an auction of the subject matter of the sales contract to repay the debts. The borrower or lender shall have the right to claim refund or compensation for the difference between the auction proceeds and the principal and interest of the loan to be repaid.

This article restrictively recognizes the effect of the assignment of security and provides guidance for the trial of such cases.

Legal Effect of Assignment of Guarantee1. According to the principle of statutory property rights, the agreement on security in the assignment guarantee contract shall be deemed invalid. Article 5 of the Property Law stipulates that "the types and contents of property rights shall be prescribed by law." "This article is a rushing provision on the legal principle of property rights.

The legal principle of property rights means that the types and contents of property rights are mandatory by law, and the parties are not allowed to create or change them freely. This fundamentally excludes the autonomy of the parties, and the parties are not allowed to negotiate the creation of new property rights, but can only negotiate the creation of real rights within the scope of the property rights established by law. However, the assignment of security is not stipulated in the Property Law, and is determined by the parties through negotiation, so this kind of security does not have and does not produce the effect of real rights, which is contrary to the legal principles of real rights, and the agreement between the parties should be invalid.

2. Although the assignment guarantee does not have the nature of a real right, the assignment guarantee contract is still a contract in the nature of creditor's rights. Since the assignment of security violates the basic principles of property law, the agreement on the assignment of security in the contract is invalid, but it does not affect the validity of other terms of the contract. If the contract stipulates how to deal with the collateral to repay the debt, it should still be deemed to be a valid agreement, and then the collateral should be disposed of according to the agreement to repay the debtor's debts and ensure the realization of the creditor's claim.

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.

Answer]: A On the issue of guarantee, there are two aspects that should be considered, one is the legal aspect, that is, the validity of the guarantee; The second is the economic aspect, that is, the adequacy of the guarantee.

Summary. Hello, the full text of the Security Law (latest) is as follows: Article 2 In economic activities such as lending, trading, cargo transportation, processing and contracting, if the creditor needs to guarantee the realization of its creditor's rights by way of guarantee, 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. Article 3 Guarantee activities shall follow the principles of equality, voluntariness, fairness, honesty and credibility. <>

Hello, the full text of the Guarantee Law (latest) is as follows: Article 2 In economic activities such as borrowing and lending, trading, cargo transportation, processing and contracting, if the creditor needs to guarantee the realization of its creditor's rights by way of guarantee, it may set up 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.

Article 3 Guarantee activities shall follow the principles of equality, voluntariness, fairness, honesty and credibility. <>

The rest of the rules are as follows: Article 4 When a third party provides a guarantee to the creditor for the debtor, the debtor may be required to provide a counter-guarantee. The provisions of this Law shall apply to counter-guarantees.

Article 5 The guarantee contract is a subordinate contract of the main contract, and the main contract is invalid, or the guarantee contract is invalid. If there is a separate agreement in the guarantee contract, it shall be in accordance with the agreement. 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 24 Where a 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. Judicial Interpretation of the Guarantee Law:

Article 30 During the guarantee period, if the creditor and the debtor have made changes to the quantity, price, currency, interest rate and other contents of the main contract, without the consent of the guarantor, if the debtor's debt is reduced, the guarantor shall still bear the guarantee liability for the modified contract; If the debtor's debt is aggravated, the guarantor shall not be liable for the aggravated part. If the creditor and the debtor have changed the performance period of the main contract, and the guarantee period shall be the period stipulated in the original contract or prescribed by law if the period is delayed without the written consent of the guarantor. If the creditor and the debtor agree to change the content of the main contract, but do not actually perform it, the guarantor shall still bear the guarantee liability.

It makes no difference! Article 30 of the Interpretation states that the responsibility is aggravated and not borne; If the time changes, the time agreed in the original contract shall be used; In addition, if the creditor and the debtor agree to change the content of the main contract in paragraph 3, but do not actually perform it, the guarantor shall still bear the guarantee liability.

This means that the original part of the guarantee agreement will continue to be undertaken. It is also the detailed provisions of the Judicial Interpretation on the "Guarantee Law".

Article 386 of the Civil Code.

The holder of the security interest shall have the right to receive priority in respect of the secured property in accordance with the law in the event that the debtor fails to perform the due debt or the parties agree to realize the security interest, unless otherwise provided by law.

Summary. Hello, the full text of the Guarantee Law (latest) is as follows: Chapter 1 General Provisions Article 1 This Law is formulated in order to regulate guarantee activities, protect the legitimate rights and interests of guarantee participants, standardize the order of the guarantee market, and promote economic development.

Article 2 Guarantee activities shall follow the principles of fairness, voluntariness, legality and good faith. Article 3 The term "guarantee" as used in this Law refers to the act of the guarantor assuming corresponding responsibility for the debts of the debtor. Article 4 Guarantees may be provided to natural persons, legal persons or other organizations.

Hello, the full text of the Guarantee Law (latest) is as follows: Chapter 1 General Provisions Article 1 This Law is formulated in order to regulate guarantee activities, protect the legitimate rights and interests of guarantee participants, standardize the order of the guarantee market, and promote economic development. Article 2 Guarantee activities shall follow the principles of fairness, voluntariness, legality and good faith.

Article 3 The term "guarantee" as used in this Law refers to the act of guaranteeing the responsibility of the cherry blossom demolition person for the debts of the debtor. Article 4: Guarantees may be provided to natural persons, legal brigade holders, or other organizations. <>

Hello, Chapter 2 Guarantee and Guarantee: Article 5 The creditor has the right to require the debtor to provide guarantee or other guarantees. Article 6 Guarantee refers to the guarantee that the guarantor bears joint and several liability for the debtor's debt excavation.

Article 7 The guarantee shall be in writing. Article 8 The guarantor may guarantee the debtor's debts in general or in the form of a special judgment guarantee. Article 9 The guarantor may take the form of separate guarantee or joint guarantee for the debtor's debts.

Hello, Chapter 3 Mortgage Guarantee: Article 12 The creditor can guess the key to require the debtor to set up a mortgage guarantee for the debt. Article 13 Mortgage guarantee means that the debtor mortgages its movable or immovable property to the creditor as property to repay debts.

Article 14 The mortgage shall not be in writing. Article 15 Certificates of deposit, possession, Suiqiao documents, valuables, cash, advance payments and other property mortgage guarantees may be established, and the provisions of this chapter shall apply. <>