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Can private borrowers list joint and several guarantors as defendants?

Time: 2018-01-14         Source: Luo Ye Law         Author: Luo Ye law

I. Can private borrowers list joint and several guarantors as defendants?

Article 53 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China stipulates: "If the creditor files a suit with the guarantor and the guarantor, the people's court shall The guarantor and the guarantor are listed as joint defendants: if the creditor only sues the guarantor, the people's court shall notify the guarantor as the joint defendant to participate in the litigation, unless the guarantor expressly stipulates that the guarantor shall bear the joint liability. The creditor may sue only the guarantor and may only be listed. The guarantor is the defendant."

       

Second, pay attention to what the debtor’s lawsuit must pay attention to

(1) Prosecution of debt disputes, and emphasis on statute of limitations.

Article 135 of the "General Principles of Civil Law" of China stipulates: "The period of limitation of action for the protection of civil rights in the People's Court is two years." Article 140 stipulates: "The statute of limitations shall be suspended due to the filing of a lawsuit, the request of one of the parties, or the consent to perform the obligation. From the time of interruption, the period of limitation of action shall be recalculated." To this end, the creditor must pay full attention to this point, otherwise, the creditor's rights will lose its legal protection.

(II) Prosecution of debt disputes and attention to the period of guarantee.

Where the general guarantee guarantor and the creditor do not have a contractual warranty period, the guarantee period is 6 months from the date when the main debt fulfills its expiry date, during the contractual guarantee period and the guarantee period specified in the preceding paragraph, the creditor has not filed a lawsuit against the debtor or applied for arbitration. The guarantor is exempted from guarantee liability. This means that, during the period, the creditor not only requires the guarantor to bear the liability, but must also sue the debtor for litigation or arbitration, otherwise the guarantor exempts the guarantor from liability.

The joint guarantor and the creditor have not agreed on the guarantee period. The creditor has the right to demand the guarantor to assume the guaranty responsibility within 6 months from the time when the creditor fulfills his obligation to complete the period. The guarantor is exempted from the guarantor liability if the creditor does not require the guarantor to bear the liability during the contractual guaranty period and the guarantee period stipulated in the preceding paragraph. This means that if the creditor does not require the guarantor to assume responsibility during the period, the guarantor will be exempted from liability after the period.

(3) The time limit for prosecution of debt disputes and application for enforcement.

According to the legal documents in effect, when the debtor refuses to perform his obligations, the creditor with the right may 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.

(D) debt disputes, do a good job of collecting evidence.

Litigation evidence plays an important role in civil lawsuits. Creditors can only rely on evidence to prove the correctness and legitimacy of Bai’s lawsuit requests. Therefore, in economic activities, creditors must pay attention to the preservation of documents, documents, various types of contract documents, various types of documents, bills, letter and telegrams, etc., as well as the collection of audio-visual materials such as material certificates, telephone recordings, and fax materials.

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