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Can private lending be listed as a defendant?

Time: 2018-01-12         Source: Luo Ye Law         Author: Luo Ye law

1. Can private lending be listed as a defendant?

Article 53 of the Supreme People's Court's Opinions on the Application of Certain Issues Concerning the Civil Procedure Law of the People's Republic of China states: "After a lawsuit brought by a contractual dispute, if the creditor claims the rights together with the guarantor and the guarantor, the people's court shall The guarantor and the guarantor are listed as co-defendants: if the creditor only sue the guarantor, the people's court shall notify the guarantor as a joint defendant to participate in the lawsuit, except that the guarantee contract expressly stipulates that the guarantor bears joint and several liability; the creditor only sue the guarantor, but only the guarantor The guarantor is the defendant."

       

Second, what should be paid attention to in the debt investigation

(1) Prosecution of debt disputes and attach importance to the statute of limitations.

Article 135 of the General Principles of the Civil Law of China stipulates: "The period of limitation of action for the protection of civil rights from the people's court is two years." Article 140 stipulates that: “The limitation of action shall be interrupted by the filing of a lawsuit, the request of one of the parties or the consent of the performance of the obligation. From the time of interruption, the period of limitation of the law shall be recalculated”. To this end, creditors should pay full attention to this point, otherwise the time limit will be lost and the creditor will lose the protection of the law.

(2) Prosecution of debt disputes and attach importance to the guarantee period.

If the guarantor and the creditor of the general guarantee have not agreed on the guarantee period, the creditor shall not file a lawsuit against the debtor or apply for arbitration within 6 months from the date of expiration of the main debt performance period, during the guarantee period stipulated in the contract and during the guarantee period stipulated in the preceding paragraph. The guarantor is exempt from warranty responsibility. That is to say, during the period, the creditor not only requires the guarantor to assume responsibility, but also must file a lawsuit or arbitration against the debtor, otherwise the guarantor will be exempted from liability.

The guarantor and the creditor of the joint liability have not agreed on the guarantee period. If the creditor has the right to assume the guarantee responsibility within the six months from the completion of the self-debt performance period, the guarantor shall not be guaranteed the liability if the creditor does not require the guarantor to assume the responsibility during the guarantee period stipulated in the contract and the guarantee period stipulated in the preceding paragraph. That is to say, if the creditor does not require the guarantor to assume responsibility during the period, the guarantor's responsibility will be waived after the period.

(3) The time limit for filing a debt dispute and applying for enforcement.

According to the legal instrument in force, the creditor who enjoys the right may, when the debtor refuses to perform the obligation, request the people's court to enforce it according to law, but the right to apply for enforcement must be exercised within the time limit of the application.

(4) Prosecution of debt disputes and do a good job in collecting evidence.

Litigation evidence occupies an important position in civil litigation. Creditors can only prove the correctness and legitimacy of Bai's litigation request by virtue of evidence. To this end, in economic activities, creditors must pay attention to the preservation of documents, documents, various types of contract texts, various types of documents, bills, letters and telegrams, etc., as well as the collection of audio-visual materials such as physical evidence and telephone recordings and fax materials.

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