The criteria for determining secured claims, and the general guarantee of claims

1. The guarantor guarantees to the creditor that the debtor will perform the debt, and if the debtor fails to perform the debt, the guarantor shall perform or bear joint and several liability in accordance with the agreement; The guarantor has the right to recover from the debtor after performing the debt.

2. The debtor or a third party may provide certain property as collateral. If the debtor fails to perform its obligations, the creditor shall have the right to be repaid in priority at the discount of the collateral or the price of the sale of the collateral in accordance with the provisions of the law.

3. One of the parties may pay a deposit to the other party within the scope prescribed by law. After the debtor performs the debt, the deposit shall be offset against the price or recovered. If the party who paid the deposit fails to perform its obligations, it has no right to demand the return of the deposit; If the party receiving the deposit fails to perform the debt, it shall be refunded twice.

4. If one party takes possession of the other party's property in accordance with the contract, and the other party fails to pay the payment due in accordance with the contract, and the agreed time limit is exceeded, the person in possession has the right to retain the property, and in accordance with the provisions of the law, the property in the retained property is discounted or the price of the property is sold.

1. The general guarantee requires that the guarantor bear the "guarantee liability" when "the debtor fails to perform the debt".

There are three limitations: 1. The debtor's inability to perform its debts can only be determined as the debtor's inability to perform its debts after trial or arbitration and compulsory enforcement;

2. Guarantee liability, that is, the part that the guarantor should bear as agreed in the guarantee contract is not a matter of course to bear all debts;

3. The guarantee period, that is, the period during which the guarantor bears the guarantee liability after the debt is due, during this period, the creditor is required to request the debtor to repay the debt by way of litigation or arbitration, otherwise, the guarantor will no longer bear the guarantee liability, but the general guarantee period will be interrupted and suspended with the statute of limitations of the debt. Taking the ordinary sales contract of the current law as an example, when the creditor's right expires, the possibility of the creditor's claim being realized will be bound by two time limits, one is the statute of limitations of three years, and the other is the guarantee period, which is assumed to be 6 months after the expiration of the debt performance period, and if the creditor does not file a lawsuit or apply for arbitration within 6 months, the guarantee will be lost.

2. From the foregoing, it can be seen that a general guarantee is not truly joint and several liability, and compared with a joint and several liability guarantee, its request to the guarantor to assume the guarantee liability must go through trial, arbitration and enforcement procedures, which is inconvenient when the debtor is obviously unable to repay the debt or the creditor urgently needs to realize the creditor's rights; However, compared with the joint and several liability guarantee, it will be interrupted with the interruption of the statute of limitations for debts, that is, if the creditor sues the debtor, the statute of limitations is interrupted, and the guarantee period will be interrupted, while the joint and several liability guarantee will not be interrupted.

In practice, the joint and several liability guarantee is better, and many links are omitted in the middle.

The forms of creditor's rights security that can be adopted mainly include mortgage guarantee; pledge security; and other forms of accompaniment with *** functions, such as lien and deposit payment. In addition, the guarantee method can also be divided into human guarantee, material guarantee and a combination of the two.

Article 387 of the Civil Code provides that if a creditor needs security in order to ensure the realization of its creditor's rights in civil activities such as lending, buying and selling, it may create a security interest in accordance with the provisions of this Law and other laws.

Legal Analysis:1If the guarantor fails to perform the debt, the guarantor shall perform or bear joint and several liability in accordance with the agreement, and the guarantor shall have the right to recover from the debtor after performing the debt.

2.The debtor or a third party may provide a certain amount of property as collateral. 3.

If the debtor fails to perform its obligations, the creditor shall have the right to be repaid in priority in accordance with the provisions of the law at a discount of the collateral or the price of the sale of the collateral. 4.If one party takes possession of the other party's property in accordance with the contract, and the other party fails to pay the payment due in accordance with the contract, and the agreed time limit is exceeded, the person in possession has the right to retain the property.

Legal basis: Civil Code of the People's Republic of China

Article 681: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 by the parties occur.

Article 682:A guarantee contract is a subordinate contract to a principal 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, guarantor and creditor are at fault, they shall each bear the corresponding civil liability according to their fault.