when the principal debtor, the referee essence of joint liability guarantee per capita property available for enforcement, the court asked the principal debtor as first liability to fulfill liability to the creditors, both with borrowing debts for the purpose, also to avoid the subsequent joint liability insurance witnesses recourse to the principal debtor after debts cumbersome once, to settle disputes.
[case]
Application for reconsideration: Gao Ping.
Applicant: Guangdong lion Lion Industrial Group Co., Ltd. (hereinafter referred to as the lion company).
Enforcee: Fu Qiyuan, Gao Ping, Guangdong, the Shenzhen state new energy Limited by Share Ltd (hereinafter referred to as Bangkai company).
A person applying for enforcement lion company and debtor company, Fu Qiyuan Gao Ping, Bangkai corporate lending dispute case, the Chenghai District of Guangdong city in Shantou province people's court made in May 14, 2014 (2014) Shan Cheng Law No. twentieth two people at the beginning of civil judgment, ordered the company to pay time limit: Bangkai lion loan 12 million yuan the lion and the interest and company for the realization of claims paid 433 thousand and 500 yuan in direct economic losses; Fu Qiyuan and Gao Ping as joint liability, joint liability for the debts of the company bangkai.
After the entry into force of the judgment, the execution of the execution of the judgment has not been fulfilled, the company applies to the Chenghai court for compulsory execution. Chenghai Court seized and frozen Bangkai company under the name of real estate, equity and bank account, and frozen Gao Ping in Banke company holds 13 million 998 thousand shares. After that, the Chenghai court to the property of the debtor is located in Shenzhen City People's Court of jurisdiction on the grounds of the case, the latter commissioned by the implementation of the. In February 2, 2015, the lion company submitted to the Baoan court to lift the seizure of the freezing application, request the lifting of the company under the name of real estate, Bangkai equity, bank account of the seizure, freezing measures. In February 13, 2015, the Baoan Court (2015) deep law enforcement executive Zi No. 460-2 ruling, ruled that the lifting of the seizure of state property company name. In September 13, 2015, the lion company to the Baoan court for auction of equity holding company Bangkai high ping. In November 19, 2015, the Baoan Court (2015) deep law enforcement executive Zi No. 460-2 ruling, ruled that the equity auction company held high Ping in banke.
Gao Ping refused to accept the ruling of the court of Baoan auction, perform objection to the hospital: first, the application executor and Bangkai company has already reached the execution reconciliation and have been fulfilled. Baoan court did not investigate the key facts, they ruled that the implementation of the shares held by the opposition, constitute the facts are not clear. Two, the opponent is only guarantee responsibility, Bangkai company is the principal debtor. Baoan court has seized the Bangkai company property, but at the request of the applicant to cancel the seizure, the disposal of the property of objection, objection to people is not public, which belongs to the erroneous application of the law.
[trial]
Baoan court review: Gao Ping as joint liability, the creditor has the obligation to pay off the debt, the creditor may require the debtor who simultaneously or successively all or part or a person to perform all or part of the obligation. Gao Ping's reason for the lifting of the measures could not be established. Accordingly, the court of Baoan in December 15, 2015 to implement the ruling, ruled out the implementation of Ping Ping objections.
Gao Ping refused to accept the ruling, the Shenzhen intermediate people's court for reconsideration.
Shenzhen intermediate people's court after examination that: on the one hand, the debtor is the beneficiary of the borrower, but also the ultimate bearer of the debt, should bear the responsibility for repayment of their property. And the joint guarantee guarantor is usually based on personal trust relationship to voluntarily provide the borrower's loan guarantee, not the beneficiary of the loan. Therefore, the joint guarantee guarantor is only the debt compensation.
When the debtor is unable to perform its obligations, the guarantor of the joint and several guarantees shall perform its obligations on behalf of its property and make the creditor's rights more secure. Therefore, the debtor joint guarantee per capita property available for execution, the debtor as the first liability to the creditors, its own negative responsibility with guaranteed loan repayment, repayment for the purpose; on the other hand, the legal relationship of joint debt internal claim, namely joint guarantee to creditors the main debt, have the right to final responsibility that the debtor to recover the debt, but this recovery often due to the debtor's property changes, there is a risk of claims not on. According to the judgment of the case verdicts, Bangkai company department involved in the debtor, Gao Ping Fu Kaiyuan, only the department involved in the joint debt guarantor. Baoan court as the court of the debtor, in Bangkai company and joint guarantee Gao Ping property are to take control measures, should be the principal debtor's property to be executed bangkai. Baoan court in the disposal of the property of the company Bangkai under the condition that the first joint guarantor under the name of Gao Ping equity guarantee to be punished, the execution acts contrary to the principle of fairness, are obviously inappropriate, should be corrected. Baoan court ruled that the objection, the results of the review is improper, should be corrected. Accordingly, the Shenzhen Intermediate Court on February 25, 2016 ruling executive, the court ruled that the revocation of Baoan (2015) deep Law No. eightieth hold different execution orders and (2015) deep law enforcement executive Zi No. 460-2 ruling.
[comment]
The focus of controversy in this case is whether the implementation of the court can be based on the general principles of joint and several debt settlement, according to the application of the applicant's application, to jointly and severally liable for any liability. Especially in the main debtor and joint responsibility to ensure that the per capita property available for the implementation of the situation, requirements of joint responsibility to ensure that people in accordance with the relevant provisions of the substantive law to perform joint liability, whether to need to pay attention to reconcile with the corresponding regulations in the implementation of the program.
The joint and several liability guarantee belongs to the guarantee system of creditor's rights"
In the event that the debt can not be fulfilled or the performance is meaningless, the creditor can only claim damages from the debtor. In cases where there is no guarantee, damages will depend on whether the debtor has sufficient property. Thus, the debtor's property has become a general guarantee of the creditor's rights.
The debtor shall, in principle, bear all its liabilities in the light of its property, which shall be the general guarantee of the creditor's right, so that it shall be reduced, and the creditor shall be of great interest. Reduce the responsibility of the property, for the debtor's negative behavior, such as claims due to failure to exercise third; for the positive behavior of the debtor, such as the name of the real estate market value is far below the normal price sold to others. In order to ensure that the creditor's right to indemnification, our country law gives creditor two substantive rights for relief: one for the right of subrogation, because the debtor is indolent in exercising its due creditor's right, causing damage to the creditor, the creditor may apply to the court for subrogation in its own name for the debtor's rights; the right of revocation. That is because the debtor renounces its due creditor's right or the free transfer of property, causing damage to the creditor, the creditor may request the court to revoke the obligor's act. Where the obligor transfers the property at an unreasonably low price, causing damage to the obligee, and the assignee knows the circumstances, the creditor may request the court to revoke the obligor's act.
The right of subrogation and the right of rescission is called the system of creditor's rights preservation. For the maintenance of the debtor's property, the benefits are enormous, but not enough to ensure the payment of the creditor's rights. The reason is: (1) a debtor responsibility object property, the unsteady, climate impermanence, dissipation of non property creditor can predict or control. (2) regardless of the occurrence of the creditor's rights, they are all in equal status, the overlap of the creditor's rights is the common phenomenon of the modern trade, the property of the liability can not be maintained, and all the people participate in the distribution, and it is difficult to be fully paid off. (3) the priority for the purpose of the government finance and the creation of taxes, for the protection of workers on establishment of wage priority system. In this situation, the general creditors have to fight for the security of their claims. In order to meet the needs of the secured creditor's rights, the law is the guarantee and the guarantee provided for the two systems, taking use of creditors.
The so-called security of goods, also known as real security, refers to the debtor or third of the specific property of the debtor to guarantee the performance of the system. This kind of system that guarantees the creditor's rights to achieve the purpose of the security of the creditor's rights is the real right for security. There are three kinds of security rights recognized by the property law in our country: mortgage, pledge and lien. The three kinds of security interests, also known as the typical security interests. With the "collateral" corresponding to the "human security" refers to the natural person or legal person with its own assets and credit guarantee the fulfillment of the debtor's debt, if the debtor defaults, the guarantor is (or guarantor) shall be responsible for the performance of its debt system. The most important thing in a person's security is to guarantee.
The system for the purpose of ensuring the creditor's rights, for the purpose of ensuring the creditor's rights. The system is a debtor attached to the third party other than the debtor.
As an important system of creditor's rights guarantee, it was confirmed by law in ancient Rome. In many countries or regions, civil law has provisions on the security system. In 1986 China promulgated and implemented since the general principles of the civil law, in article eighty-ninth (a) are also to ensure regulations: ensure that the debtor to the creditor, the debtor defaults, the guarantor shall perform in accordance with the contract or bear joint liability; guarantee performance after the debt has the right to the debtor recovery. 1995 promulgated and implemented Sixth provisions of the guarantee law so far: as mentioned in this Law refers to the guarantee, the guarantor and the creditor agree, when the debtor fails to perform in accordance with the contract, the guarantor shall perform the obligation or bear the liability. There are two types of guarantee in the guarantee law, namely, general guarantee and joint liability guarantee. The general guarantee is that the parties agreed in the contract that the debtor defaults, the guarantor shall undertake suretyship liability; joint liability guarantee, refers to the parties in the contract of guarantee stipulated in the guarantor and the debtor liable for debts. The biggest difference between the general guarantee and joint liability guarantee is that the former has the right to search for defense, while the latter has no. The right of defense of the search is also called the right of plea for first instance, which means that the guarantor of the general guarantee is not subject to trial and arbitration in the main contract dispute, and the right of defense of the debtor's property is still enforced by 1. Contract creditor and guarantor for joint liability guarantee, the debtor in the main contract deadline for performance did not fulfill the obligation, the creditor may require the debtor to fulfill the debt, or demand that the surety undertake suretyship liability within the scope of.
The above laws and judicial interpretations constitute the basic framework of China's guarantee system.
Two, joint and several liability guarantee and joint and several liability
The theory of civil law in mainland China has always been in debt and liability does not distinguish, that the violation of civil obligations (whether contractual obligation or legal obligation) behavior is a kind of illegal behavior, which is the civil liability. The civil liability is the legal sanction of the violation of civil obligations.
Therefore, the concept of joint and several liability and joint liability in the context of mainland china. When the debtor fails to perform its obligations, the creditor may request the guarantor to perform the original principal debt, or he may require the corresponding civil liability. In the civil law on the impact of China's mainland civil law deep German science, debt and liability are two strictly distinguish legal concept: debt for the debtor to perform the contract obligations, responsibility is the guarantee for the performance of the. That is, when the debtor fails to perform its obligations, the creditor will have to comply with the mandatory method in order to meet the obligations. Both have different, since the non simultaneous existence. A person who has a debt and has no responsibility is a natural debt; a person who has no obligation or a debt, such as a security person who set a debt for the third party.
In accordance with the same following the Taiwan law of our country of German civil law circle that joint debt index is negative the same debt, according to the express or the provisions of the law, the main form for the majority of creditors take full responsibility of the payment of debt. Upon the establishment of the joint and several liability, each party shall bear all the responsibility of payment.
Understanding of the connotation of joint debt can be divided as follows: (1) the payment can be divided, but the Gei Fuzhi bear all the responsibility; (2) for all the benefits of the debtor, the debtor of his debts, for the purpose of payment lost its existence, also with extinction; (3) the debtor has a common aim in the subjective implicated each other and one of the items, the effect is often in others, and in the internal legal relationship between, right of claim; (4) joint debt for the majority of debt, with each other, not only independently coexist, no master-slave relationship, but also as a separate assignment, guarantee the timeliness, attached, or even invalid or revoked, are not necessarily the same. The establishment of joint and several liability is the main reason for this kind of debt. A juristic act or deed. According to the individual behavior and living, such as the number of testamentary heir, the legacy of the payment obligation, or the number of people on the legacy of the legatee attached obligations according to the contract, the burden of joint debt; and the living, must express each obligor full payment, for full payment of a debt and to destroy all if I have this meaning, express meaning is enough, solid without the use of "joint". In addition, the establishment of joint and several liability, can also occur in accordance with the law.
In the case of an agreed or statutory joint and several liability, the creditor may, at the request of one or more of the debtor, or all of his or her creditors, request, at the same time, all or part of the payment. Before the full performance of the joint and several liabilities, the debtor shall be jointly and severally liable. Because of this, although there is no guarantee of joint debt, the name, but the system function, can ensure the real. To cover the debts of the world due to the joint and several relations, each debtor shall bear all the responsibility of payment, is actually equal to the debtor, with its responsibility for the property, the debtor's negative security function. It is sufficient to ensure that the creditor's rights, so that it is easy to be repaid, and in particular to ensure that debt. Taiwan region is considered the judicial practice, the creditor has the right to request payment of multiple choice, the debtor may request, since he is not by the debtor to the debtor creditor Tuituo; one or several separately or jointly request or prosecution, it is not necessary to suit the problem; on the part of the debtor creditor, has determined the longitudinal judgment is enforced, for he still in the debtor is not repaid the amount in another suit or request for compulsory execution.
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Germany and the countries and regions under the German civil law system of science and technology, usually in conjunction with the provisions of the debt of the civil code. The mainland of China in the eighty-seventh general principles of civil law of joint debt and joint debt to make principled provisions: the creditor or the debtor a number of two people or more, according to the provisions of the law or the agreement between the parties, each of the joint creditors, have the right to request the debtor to fulfill the obligation; each of the joint debtors have, pay off all the debts of the obligation to fulfill the obligation of the people, have the right to ask the other joint debtors to reimburse him shall bear the share. As mentioned earlier, because mainland China has always been Department of debt and liability to one, the joint debt and joint liability is also the legal concept of joint. About our country's joint debt (liability) legal type, referring to related laws, such as the typical partnership partnership joint venture joint liability, joint liability, agent relationship between the principal and agent of the third person joint liability, the guarantor and the creditor of the joint liability, joint infringement the joint liability for the partnership, joint liability, all of them are based on the relationship between foreign joint debt burden, joint tort and special tort liability, legal person or other social organizations after the division of joint liability, common contractor of the hirer's joint liability, two more than the carrier to the shipper of the joint liability, more than two trustees of the principal joint liability, joint liability, the surety between the guarantor and the debtor for debt Right of joint liability, the shareholders and the creditors of the company to sponsor joint liability; joint liability for couples conjugal debt; joint responsibility of producers and sellers to affected consumers; ensure and guarantee liability between people and guarantor; the carrier and the actual carrier and the towing and towed. Joint responsibility.
This paper comments on the case, the need to think about is: on the basis of joint liability joint and several liability stipulated in the first paragraph of article eighteenth of the guarantee law and the main debtor debt obligations, whether can of course is equivalent to understand the general principles of civil law in eighty-seventh after the joint debt? This is related to the joint liability guarantee whether it belongs to the traditional German civil law called the joint debtor between the person and the principal debtor problem, which relates to the main problem in this paper -- whether the court can perform general legal joint debt based upon application by the applicant for enforcement, to ensure the people of any joint liability. On this issue, there are two kinds of opinions in the field of civil law theory in china. The positive opinion solution that suretyship of joint and several liability, the creditors of the debt free, the burden of responsibility to ensure the system on behalf of the debtor, but because of its property of joint settlement, ensure joint responsibility to ensure that the creditors, is actually a joint debt. The provisions of the civil law on joint and several liability shall be applicable to the matters concerning the joint and several liability.
Hold no opinion solution that joint liability guarantee is a guarantee, which is different from the joint debt, always subject to the principal obligation, subordinate to the main debt, but because of the change of the main debt changes, eliminated due to elimination of the principal debts. The joint and several liability is a completely independent debt. In a joint and several liability, the debtor shall, after the completion of all debts, claim the rights to the other obligor in respect of the performance of the prior agreement. However, there is no question of debt sharing between the joint liability guarantor and the principal debtor. 1 the witness may recover the principal debtor from the performance of the principal debt.
I think that, although in joint liability guarantee the guarantor and the principal debtor creditor to assume joint liability, the debtor cannot perform the debt may require the debtor to fulfill the debt, or demand that the surety undertake suretyship liability within the scope, but even with debt and joint responsibility to ensure that there are still obvious differences:
1 the reasons for the difference between the two. Joint and several liability is based on the same legal reasons, resulting in the identity of the debt, such as the joint tort of several persons to bear the joint and several liability. However, in the joint and several liability guarantee, the guarantor is jointly and severally liable to the principal debtor, but the reason for the occurrence of the suretyship debt is different from that of the principal debt. To ensure that the debt is based on a guaranteed contract and the principal debt is based on the principal contract.
The 2 of the two are different in the identity of the payment and the hierarchy of the debt. As far as joint debt is concerned, the payment of the debtor is identical. Although there is no doubt about the identity of payment, it is very controversial in theory, but there is no doubt about the responsibility of the joint and several debtors to the creditor. On joint liability guarantee, guarantee the principal debt bear the guaranteed debt and principal debtor is obviously not the same class of responsibility, because the principal debtor debt is the final undertaker, the guarantor is "pre payment of debt." the German civil law scholars Larenz think: the common tort, because each tortfeasor bear all liability for damages, which can be based on the joint debtors of paragraph first of the German civil code 840th. However, the debtor and the debtor, the debtor and the debtor, because the main debtor should be ultimately responsible; on the contrary, the joint guarantor has the same class, and therefore belong to the joint debtor. The German civil law scholar Medicus also said: Although the joint liability guarantee at the same time there are a number of creditors in the same settlement for the content of the debt, but a debt which is the main subject that debt debtor, the principal debtor determines the creditors enjoy what benefits, but another debt is debt guarantee (guarantee liability) is only dependent on the principal debt, the debt to the main.
It is because of joint liability guarantee, the principle is the final debt undertaker, thus ensuring people assume responsibility enjoys the right of recourse to the principal debtor, and in the range due to assume responsibility for the principal debtor exemption under the principal claim and full force. However, the debtor in the joint and several liabilities shall be the final undertaker of the debt, but the debtor shall be liable to the other debtor for the part beyond which he is liable. Therefore, although the joint debt and joint liability guarantee has the burden of paying off all the debts for creditor obligations, but in the internal relations, internal claims between the joint debtors (recovery), and joint liability guarantee to the obligor's internal claim (recovery), the two are essentially the difference. Specifically, the internal compensation system of joint and several liabilities is established on the basis of the joint and several liability share of each other, and there is no division of the debt share in the joint liability guarantee.
Three, the implementation of joint and several liability guarantor should not apply the principle of joint and several discharge
"Execution is the fundamental embodiment of judicial relief from the ancient private remedy, and it is also the extension and ultimate purpose of judicial function." As a kind of legal system, the joint and several liability is concerned with the relationship between the debtor and the creditor.
It should not be denied to the common debts between the debtors or the joint debt formation and settlement status difference, also should not be excluded in the specific settlement process of the debtor or the division of primary and secondary order. This division is not only the responsibility of the debtor, but does not affect the ultimate realization of the interests of the obligee. "From the practice, not the main points of the debtor to creditors, is very favorable, but for the borrower, in many cases is too harsh and demanding, even contrary to the fair and reasonable legal spirit and seeking truth from facts, the distinction of judicial principles and policies."
There are judicial practice incisive summary pointed out that at present there are two major drawbacks in the implementation of joint and several liability:
1 arbitrary execution. For the implementation of the pursuit of efficiency, executives do not usually consider secondary joint debt execution order, "who is rich, who tend to have performed" solvency in the debtor's condition, in order to perform convenient and fast implementation of the debtor's property still joint. On the one hand, the executive power is too large, on the other hand, the confrontation between the parties and the court. The execution of the agreement between the parties, the avoidance of execution, the implementation of resistance, and even do not rule out the possibility of collusion between the parties. Especially in the party itself is not wrong, just because a particular legal relationship involved in the proceedings and to bear joint and several liability, this confrontation is more intense.
2 litigation of recovery. The debtor and the debtor shall be entitled to claim the right to pay the debts of the joint and several parties, but the current law does not stipulate the procedure for the realization of the right of claim. In judicial practice, by the implementation of the joint debtors to achieve its claims are usually handled separately sued manner, resulting in "for others also money, but also a lawsuit." this is a waste of judicial resources, but also brings the party lawsuit.
Based on the above drawbacks exposed in practice, the author agrees that the joint and several liability is a special kind of debt. In the non litigation stage, it should be more consideration on how to better achieve the rights and interests of the parties; and in the phase of the execution procedure, you need to consider two factors of the parties and the court, the demands of justice and efficiency, reduce judicial arbitrariness, corruption and waste; in the value orientation, to balance the real value and application value. Both parties of personal interests and social interests of justice. "
Therefore, the author thinks that joint debt (liability) the free claim pattern involved in joint responsibility to ensure the implementation, application should not be completely mechanical copy, should be based on maintaining the rights and interests of the applicant to minimize joint liability disputes such cases as internal recovery performance goals. To this end, the author suggests that the implementation of joint and several liability guarantees, should establish the concept of "executive order".
"That is, for this kind of joint responsibility to ensure that no internal debt share has final liability of the case, the judge should give priority to the implementation of the implementation of the debtor's property. Only when the property of the principal debtor is insufficient to discharge the property of the joint and several liability guarantor. So, does not deviate from the joint debt legislation designed to fully protect the interests of creditors, but also face the main joint liability guarantee (the main debtor) from the (joint liability guarantor) internal ecological relations, also can effectively avoid the risk of double claim procedures of joint liability guarantee, after the exercise of the right to the principal debtor may face tediousness and claim the final results can not be achieved, but also conform to the modern judicature are increasingly advocated "the complete dispute" the spirit of philosophy. On the contrary, the guarantor has property available for enforcement in the case of the principal debtor, joint liability, the executive judge do not dispose of the principal debtor property but forced to promote the disposal of joint liability guarantee under the name of the property, is tantamount to the joint responsibility to ensure that people instead of the principal debtor debt become final responsibility, to joint responsibility to ensure that people, obviously fairness is difficult.
The author believes that to ensure the joint responsibility of the implementation must follow the "executive order" concept, is not only the modern society should be emphasized by law and public law principles of social interests of private interests, but also the pursuit of social justice, to restrain fromdisputable function.