[introduction of the lawyer in this case]
Liu mingcen, partner of Beijing Branch of Liaoning Tongfang law firm. He is good at financial, insurance, securities, capital financing, civil and commercial litigation and execution, corporate business and tax and other legal services.
[referee points]
The contract signed between the parties is the expression of the true intention of the parties to the contract and conforms to the effective conditions agreed in the contract. Therefore, the above contract is legally established, true and effective, and legally binding on the parties to the contract. The parties to the contract shall exercise their contractual rights and perform their contractual obligations as agreed in the contract.
[basic case]
The defendant 1 signed the working capital loan contract with the plaintiff XX bank to borrow 20 million yuan from the bank, and provided the following guarantees for the loan: the defendant 1 provided the pledge of accounts receivable; Defendant 3 provided the deposit certificate pledge; The defendants 2, 3, 10 and 11 provided real estate mortgage; Defendants 2, 3, 4, 5, 6, 7, 8 and 9 provided joint and several liability guarantee.
[judgment result]
1、 The defendant XX company shall pay the principal of the loan owed by the plaintiff XX bank in a lump sum within ten days from the date when this judgment becomes legally effective × Yuan;
2、 The defendant XX company shall pay a lump sum payment to the plaintiff XX bank within ten days from the date when this judgment becomes legally effective × year × month × Interest owed on (including default interest and compound interest) × Yuan, and from × year × month × Loan principal from the date of the judgment to the date of actual repayment of the debt × RMB interest (including default interest and compound interest, the standard of default interest and compound interest is the annual interest rate of the loan × Calculation);
3、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank has the priority right to receive payment within the scope of the pledge right for the accounts receivable of the defendant XX company pledged by the plaintiff (payer: XX company, etc.);
4、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall pay the 8 × The yuan savings certificate of deposit has the priority to be repaid within the scope of pledge rights;
5、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall have the priority right of compensation within the scope of the mortgage right for the house [address omitted] owned by the defendant XX company mortgaged to the plaintiff;
6、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall have the priority right of compensation within the scope of mortgage rights for the houses [address omitted] owned by the defendant Wu XX and Jiang XX mortgaged to the plaintiff;
7、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall have the priority right to receive compensation within the scope of mortgage rights for the house [address omitted] mortgaged to the plaintiff in the name of the defendant Wu XX;
8、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall have the priority right of compensation within the scope of the mortgage right for the property [address omitted] owned by the defendant Jin XX mortgaged to the plaintiff;
9、 The defendants Wu, Jiang, an, Zhuang, Jiang, Chen, XX and XX bear joint and several guarantee liability for the obligations of the defendant XX in Item 1 and item 2 of this judgment;
10、 Other claims of the plaintiff XXX bank were rejected.
[reasons for adjudication]
According to the provisions of China's civil procedure law, the parties have the right to reply and cross examine the evidence submitted by the other party. If the defendant of this case refuses to appear in court without justifiable reasons after being legally summoned by the court, it is deemed that he has waived the right to cross examine. The court shall determine the facts of the case according to the statements and evidence provided by the plaintiff and the parties present.
1. The plaintiff XX bank signed the working capital loan contract and the maximum amount pledge contract of accounts receivable with the defendant XX company, the maximum amount mortgage contract with the defendant Wu XX and XX company, the maximum amount pledge contract of rights with the defendant Jiang XX, and the maximum amount guarantee contract with the defendant Wu XX and XX company, all of which are the true intention of the parties to the contract, And meet the effective conditions agreed in the contract. Therefore, the above contract is legally established, true and effective, and legally binding on the parties to the contract. The parties to the contract shall exercise their contractual rights and perform their contractual obligations as agreed in the contract. After signing the loan contract with the plaintiff and obtaining the loan, the defendant XX company failed to perform the obligation to repay the principal and interest in time in strict accordance with the contract. end × year × month × On, the loan principal was in arrears × Yuan, interest × Yuan (including penalty interest and compound interest). The defendant's behavior violated the contract and was a breach of contract. Therefore, the court supported the plaintiff's claim to repay the principal and interest.
2. As for the plaintiff's claim that all the accounts receivable pledged by the defendant XX company to the plaintiff have the priority to be paid, according to the agreement of the maximum amount pledge contract of accounts receivable signed by the plaintiff and the defendant XX company, the plaintiff has the corresponding right to the pledged accounts receivable, and the pledged accounts receivable has been registered with the credit information center of the people's Bank of China for the unified ownership of movable property. Therefore, The court supported it.
Regarding the plaintiff's request to pledge the defendant Wu to the plaintiff × With regard to the priority of the RMB deposit certificate, according to the agreement in the pledge contract for the maximum amount of rights signed by the plaintiff and the defendant Wu, the plaintiff has corresponding rights to the pledged deposit certificate, and the pledged deposit certificate has gone through the procedures for stopping payment and been kept by the plaintiff. Therefore, the court supports the plaintiff's claim.
3. With regard to the plaintiff's claim that the mortgaged real estate and land of the defendants Wu and so on have the priority of compensation, according to the maximum mortgage contract signed by the plaintiff and the defendants Wu and so on, the plaintiff has the corresponding rights to the mortgaged real estate, and the mortgaged real estate has gone through the mortgage registration formalities in the corresponding departments. Therefore, the court supports the plaintiff's claim.
4. On the plaintiff's request that the defendants Wu, XX company and others bear joint and several guarantee liability. According to the maximum guarantee contract signed by the plaintiff and the defendants, the plaintiff has corresponding rights. Therefore, the court supports the plaintiff's claim.
[relevant provisions]
Article 60 in the contract law of the people's Republic of China, the parties shall fully perform their obligations as agreed.
The parties shall abide by the principle of good faith and perform the obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract.
Article 107 If a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the contract, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses.
Article 18 in the guarantee law of the people's Republic of China, where the parties agree in the guarantee contract that the guarantor and the debtor shall bear joint and several liability for the debt, it is a joint and several liability guarantee.
Where the debtor of a suretyship of joint and several liability fails to perform his obligations at the expiration of the period of performance stipulated in the main contract, the creditor may require the debtor to perform his obligations, and may also require the guarantor to bear the suretyship liability within the scope of his suretyship.
Article 21 the scope of guarantee includes the principal creditor's rights and interests, liquidated damages, damages and expenses for realizing the creditor's rights. Where there are other provisions in the guarantee contract, such provisions shall prevail.
If the parties have not agreed on the scope of the guaranty or the agreement is not clear, the guarantor shall be liable for all the debts.
Article 33 "mortgage" as mentioned in this Law means that the debtor or a third party does not transfer the possession of the property listed in Article 34 of this Law and uses the property as a guarantee for the creditor's rights. If the debtor fails to perform its obligations, the creditor shall have the right to convert the property into money or to have priority in receiving payment from the proceeds of auction or sale of the property in accordance with the provisions of this law.
The debtor or the third party specified in the preceding paragraph shall be the mortgagor, the creditor shall be the mortgagee, and the property to be guaranteed shall be the mortgaged property
Article 41 Where a party mortgages the property specified in Article 42 of this law, it shall register the mortgaged property, and the mortgage contract shall come into force as of the date of registration.
Article 46 the scope of mortgage guarantee includes the principal creditor's rights and interests, liquidated damages, damages and expenses for realizing the mortgage right. If the mortgage contract provides otherwise, the agreement shall prevail.
Article 75 the following rights may be pledged:
（1） Bills of exchange, cheques, promissory notes, bonds, certificates of deposit, warehouse receipts, bills of lading;
（2） Shares and stocks that can be transferred according to law;
（3） The right to exclusive use of trademarks, property rights in patents and copyrights that can be transferred according to law;
（4） Other rights that can be pledged according to law.
Article 81 in addition to the provisions of this section, the pledge of rights shall be subject to the provisions of section 1 of this chapter.
Article 144 in the Civil Procedure Law of the people's Republic of China, if the defendant refuses to appear in court without justifiable reasons after being summoned by summons, or withdraws from court without the permission of the court, he may make a judgment by default.
[lawyer's opinion]
1. The parties to a contract shall abide by the principle of honesty and trustworthiness in the course of civil activities. The parties shall perform their contractual obligations in strict accordance with the provisions of the contract. In this case, the borrower's overdue repayment in violation of the contract has constituted a breach of contract, so it needs to bear corresponding liabilities for breach of contract.
2. In the process of civil proceedings, the defendant shall participate in the court hearing on time after receiving the summons and the copy of the indictment from the court. If the defendant fails to participate in the court hearing according to the time and place of the summons, it shall be deemed that the defendant has waived the right of reply and cross examination.
3. In civil activities, it should be carefully considered to provide guarantee for others in one's own name or provide mortgage guarantee for others with one's own property. The term "guarantee" as mentioned in the guarantee law of the people's Republic of China refers to the act of the guarantor and the creditor agreeing that, when the debtor fails to perform the debt, the guarantor shall perform the debt or bear the liability according to the agreement. The guarantee methods include general guarantee and joint and several liability guarantee. Therefore, once the guarantor provides guarantee for others, when the debtor is unable to perform the debt, the guarantor will face the risk of performing the debt or assuming the responsibility as agreed. In addition, if the debtor provides mortgage guarantee for others with his own property, he will face the risk that the mortgaged property will be sealed up, auctioned and sold off when the debtor is unable to perform his obligations.
Liu mingcen, partner of Beijing Branch of Liaoning Tongfang law firm. He is good at financial, insurance, securities, capital financing, civil and commercial litigation and execution, corporate business and tax and other legal services.
[referee points]
The contract signed between the parties is the expression of the true intention of the parties to the contract and conforms to the effective conditions agreed in the contract. Therefore, the above contract is legally established, true and effective, and legally binding on the parties to the contract. The parties to the contract shall exercise their contractual rights and perform their contractual obligations as agreed in the contract.
[basic case]
The defendant 1 signed the working capital loan contract with the plaintiff XX bank to borrow 20 million yuan from the bank, and provided the following guarantees for the loan: the defendant 1 provided the pledge of accounts receivable; Defendant 3 provided the deposit certificate pledge; The defendants 2, 3, 10 and 11 provided real estate mortgage; Defendants 2, 3, 4, 5, 6, 7, 8 and 9 provided joint and several liability guarantee.
[judgment result]
1、 The defendant XX company shall pay the principal of the loan owed by the plaintiff XX bank in a lump sum within ten days from the date when this judgment becomes legally effective × Yuan;
2、 The defendant XX company shall pay a lump sum payment to the plaintiff XX bank within ten days from the date when this judgment becomes legally effective × year × month × Interest owed on (including default interest and compound interest) × Yuan, and from × year × month × Loan principal from the date of the judgment to the date of actual repayment of the debt × RMB interest (including default interest and compound interest, the standard of default interest and compound interest is the annual interest rate of the loan × Calculation);
3、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank has the priority right to receive payment within the scope of the pledge right for the accounts receivable of the defendant XX company pledged by the plaintiff (payer: XX company, etc.);
4、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall pay the 8 × The yuan savings certificate of deposit has the priority to be repaid within the scope of pledge rights;
5、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall have the priority right of compensation within the scope of the mortgage right for the house [address omitted] owned by the defendant XX company mortgaged to the plaintiff;
6、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall have the priority right of compensation within the scope of mortgage rights for the houses [address omitted] owned by the defendant Wu XX and Jiang XX mortgaged to the plaintiff;
7、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall have the priority right to receive compensation within the scope of mortgage rights for the house [address omitted] mortgaged to the plaintiff in the name of the defendant Wu XX;
8、 If the defendant XX company fails to perform the first and second items of this judgment, the plaintiff XX bank shall have the priority right of compensation within the scope of the mortgage right for the property [address omitted] owned by the defendant Jin XX mortgaged to the plaintiff;
9、 The defendants Wu, Jiang, an, Zhuang, Jiang, Chen, XX and XX bear joint and several guarantee liability for the obligations of the defendant XX in Item 1 and item 2 of this judgment;
10、 Other claims of the plaintiff XXX bank were rejected.
[reasons for adjudication]
According to the provisions of China's civil procedure law, the parties have the right to reply and cross examine the evidence submitted by the other party. If the defendant of this case refuses to appear in court without justifiable reasons after being legally summoned by the court, it is deemed that he has waived the right to cross examine. The court shall determine the facts of the case according to the statements and evidence provided by the plaintiff and the parties present.
1. The plaintiff XX bank signed the working capital loan contract and the maximum amount pledge contract of accounts receivable with the defendant XX company, the maximum amount mortgage contract with the defendant Wu XX and XX company, the maximum amount pledge contract of rights with the defendant Jiang XX, and the maximum amount guarantee contract with the defendant Wu XX and XX company, all of which are the true intention of the parties to the contract, And meet the effective conditions agreed in the contract. Therefore, the above contract is legally established, true and effective, and legally binding on the parties to the contract. The parties to the contract shall exercise their contractual rights and perform their contractual obligations as agreed in the contract. After signing the loan contract with the plaintiff and obtaining the loan, the defendant XX company failed to perform the obligation to repay the principal and interest in time in strict accordance with the contract. end × year × month × On, the loan principal was in arrears × Yuan, interest × Yuan (including penalty interest and compound interest). The defendant's behavior violated the contract and was a breach of contract. Therefore, the court supported the plaintiff's claim to repay the principal and interest.
2. As for the plaintiff's claim that all the accounts receivable pledged by the defendant XX company to the plaintiff have the priority to be paid, according to the agreement of the maximum amount pledge contract of accounts receivable signed by the plaintiff and the defendant XX company, the plaintiff has the corresponding right to the pledged accounts receivable, and the pledged accounts receivable has been registered with the credit information center of the people's Bank of China for the unified ownership of movable property. Therefore, The court supported it.
Regarding the plaintiff's request to pledge the defendant Wu to the plaintiff × With regard to the priority of the RMB deposit certificate, according to the agreement in the pledge contract for the maximum amount of rights signed by the plaintiff and the defendant Wu, the plaintiff has corresponding rights to the pledged deposit certificate, and the pledged deposit certificate has gone through the procedures for stopping payment and been kept by the plaintiff. Therefore, the court supports the plaintiff's claim.
3. With regard to the plaintiff's claim that the mortgaged real estate and land of the defendants Wu and so on have the priority of compensation, according to the maximum mortgage contract signed by the plaintiff and the defendants Wu and so on, the plaintiff has the corresponding rights to the mortgaged real estate, and the mortgaged real estate has gone through the mortgage registration formalities in the corresponding departments. Therefore, the court supports the plaintiff's claim.
4. On the plaintiff's request that the defendants Wu, XX company and others bear joint and several guarantee liability. According to the maximum guarantee contract signed by the plaintiff and the defendants, the plaintiff has corresponding rights. Therefore, the court supports the plaintiff's claim.
[relevant provisions]
Article 60 in the contract law of the people's Republic of China, the parties shall fully perform their obligations as agreed.
The parties shall abide by the principle of good faith and perform the obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract.
Article 107 If a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the contract, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses.
Article 18 in the guarantee law of the people's Republic of China, where the parties agree in the guarantee contract that the guarantor and the debtor shall bear joint and several liability for the debt, it is a joint and several liability guarantee.
Where the debtor of a suretyship of joint and several liability fails to perform his obligations at the expiration of the period of performance stipulated in the main contract, the creditor may require the debtor to perform his obligations, and may also require the guarantor to bear the suretyship liability within the scope of his suretyship.
Article 21 the scope of guarantee includes the principal creditor's rights and interests, liquidated damages, damages and expenses for realizing the creditor's rights. Where there are other provisions in the guarantee contract, such provisions shall prevail.
If the parties have not agreed on the scope of the guaranty or the agreement is not clear, the guarantor shall be liable for all the debts.
Article 33 "mortgage" as mentioned in this Law means that the debtor or a third party does not transfer the possession of the property listed in Article 34 of this Law and uses the property as a guarantee for the creditor's rights. If the debtor fails to perform its obligations, the creditor shall have the right to convert the property into money or to have priority in receiving payment from the proceeds of auction or sale of the property in accordance with the provisions of this law.
The debtor or the third party specified in the preceding paragraph shall be the mortgagor, the creditor shall be the mortgagee, and the property to be guaranteed shall be the mortgaged property
Article 41 Where a party mortgages the property specified in Article 42 of this law, it shall register the mortgaged property, and the mortgage contract shall come into force as of the date of registration.
Article 46 the scope of mortgage guarantee includes the principal creditor's rights and interests, liquidated damages, damages and expenses for realizing the mortgage right. If the mortgage contract provides otherwise, the agreement shall prevail.
Article 75 the following rights may be pledged:
（1） Bills of exchange, cheques, promissory notes, bonds, certificates of deposit, warehouse receipts, bills of lading;
（2） Shares and stocks that can be transferred according to law;
（3） The right to exclusive use of trademarks, property rights in patents and copyrights that can be transferred according to law;
（4） Other rights that can be pledged according to law.
Article 81 in addition to the provisions of this section, the pledge of rights shall be subject to the provisions of section 1 of this chapter.
Article 144 in the Civil Procedure Law of the people's Republic of China, if the defendant refuses to appear in court without justifiable reasons after being summoned by summons, or withdraws from court without the permission of the court, he may make a judgment by default.
[lawyer's opinion]
1. The parties to a contract shall abide by the principle of honesty and trustworthiness in the course of civil activities. The parties shall perform their contractual obligations in strict accordance with the provisions of the contract. In this case, the borrower's overdue repayment in violation of the contract has constituted a breach of contract, so it needs to bear corresponding liabilities for breach of contract.
2. In the process of civil proceedings, the defendant shall participate in the court hearing on time after receiving the summons and the copy of the indictment from the court. If the defendant fails to participate in the court hearing according to the time and place of the summons, it shall be deemed that the defendant has waived the right of reply and cross examination.
3. In civil activities, it should be carefully considered to provide guarantee for others in one's own name or provide mortgage guarantee for others with one's own property. The term "guarantee" as mentioned in the guarantee law of the people's Republic of China refers to the act of the guarantor and the creditor agreeing that, when the debtor fails to perform the debt, the guarantor shall perform the debt or bear the liability according to the agreement. The guarantee methods include general guarantee and joint and several liability guarantee. Therefore, once the guarantor provides guarantee for others, when the debtor is unable to perform the debt, the guarantor will face the risk of performing the debt or assuming the responsibility as agreed. In addition, if the debtor provides mortgage guarantee for others with his own property, he will face the risk that the mortgaged property will be sealed up, auctioned and sold off when the debtor is unable to perform his obligations.
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