[introduction to the lawyer of this case] Zhang Xinhui, senior partner of Liaoning Tongfang law firm. Lawyer Zhang Xinhui has long provided perennial legal advisory services for well-known real estate development companies, banks, state-owned enterprises and listed companies; He is good at litigation cases of banks, companies and commercial enterprises, and has appeared in the Supreme People's court, Liaoning Provincial Higher People's court and other courts to host cases.
Lawyer Zhang Xinhui is currently a member of the Liaoning Provincial Committee of the Chinese people's Political Consultative Conference / member of the proposal review committee, deputy director of the human resources, environment and Legal Affairs Committee of Liaoning Jiusan Society, director of the finance and Taxation Professional Committee of Liaoning Province, director of the finance and insurance professional Committee of Shenyang Lawyers Association, director of Liaoning Lawyers Association, executive director of Shenyang Lawyers Association, and arbitration member of Shenyang arbitration committee.
Lawyer Zhang Xinhui has successively won the titles of "top ten legal aid lawyers in Shenyang", "excellent lawyers in Liaoning Province", "model of honest lawyers in Shenyang", "political and legal cadres and policemen satisfied by the people of Liaoning Province", "the first outstanding young lawyers of Liaoning Provincial Lawyers Association", etc.
[key points of judgment] although the contents of the overdue loan collection notice sent by the bank to the debtor do not specify the specific amount of all overdue interest, the interest items in the overdue loan collection notice shall include interest, default interest and compound interest. The overdue loan collection notice shall not be deemed to exempt the borrower from the obligation to pay default interest and compound interest; With regard to the scope of Priority Repayment of the mortgage right, Article 61 of the interpretation of the security law stipulates that if the contents recorded in the mortgage registration are inconsistent with the mortgage contract, the contents recorded in the registration shall prevail. This provision is a provision on the registration content of the mortgaged property, rather than a provision on the scope of mortgage guarantee. The scope of the priority of compensation shall be subject to the contract; On the issue of joint and several suretyship liability, the suretyship period has passed because the suretyship period has not claimed rights to the surety of joint and several liability within the suretyship period.
[basic case] Liaoning Xingzhe plate industry group Co., Ltd. and its subsidiaries, including Liaoyang Rongxing Real Estate Development Co., Ltd. and Liaoyang Rongxing construction and Installation Engineering Co., Ltd., borrowed nearly 100 million yuan from Liaoyang bank. In order to ensure the smooth repayment, the guarantor provided the mortgage of real estate, land and equipment, and handled the mortgage registration (the mortgage registration is only recorded in the principal amount of the guaranteed creditor's rights), and Liaoning Xingzhe plate industry group Co., Ltd. and its subsidiaries signed the letter of commitment, It is stated that "the group and its subsidiaries hereby undertake that the group and its subsidiaries shall jointly assume joint and several guarantee liabilities for all financing (including but not limited to borrowing, loan rollover, etc.) of the group and its subsidiaries in your bank." Later, because each borrower failed to repay the loan, the bank repeatedly served the notice of overdue loan collection, and the notice sent later did not specify the specific amount of all outstanding interest, nor did it indicate the default interest and compound interest.
[judgment result] the judgment of the court of first instance: I. The defendant Liaoyang spiral straight seam steel pipe factory shall pay the plaintiff Liaoyang Bank Co., Ltd. the loan principal of 49.5 million yuan and the interest (the interest shall be calculated at 5.6% from June 21, 2015 to the date of actual repayment) within 10 days from the date when this judgment takes effect; 2、 When the defendant fails to pay the first debt of this judgment on time, the plaintiff has the right to discount the mortgage under the other certificate of rights, or the proceeds from the auction and sale shall have priority to be paid within the loan principal amount; 3、 Reject other claims of the plaintiff.
The judgment of the court of second instance: I. The third item of the civil judgment of Liaoyang intermediate people's Court (2018) Liao 10 min Chu No. 38 was revoked; 2、 Change item 1 of Liaoyang intermediate people's Court (2018) Liao 10 min Chu No. 28 civil judgment: Liaoyang spiral straight seam steel pipe factory shall pay the loan principal of 49.5 million yuan to Liaoyang Bank Co., Ltd. within 10 days from the date of the legal effect of this judgment, and pay interest, compound interest and penalty interest according to the calculation method agreed in the working capital loan contract from June 21, 2015 to the date of actual repayment; 3、 Change item 2 of Liaoyang intermediate people's Court (2018) Liao 10 min Chu No. 28 civil judgment as: when Liaoyang Bank Co., Ltd. fails to pay the second debt of this judgment on time in Liaoyang spiral straight seam steel pipe factory, it has the right to discount or auction the collateral under other certificates of rights, and the proceeds after sale shall be paid within the loan principal, interest, compound interest, penalty interest and litigation expenses; 4、 Other claims of Liaoyang Bank Co., Ltd. were rejected.
[reason for judgment] the court of first instance held that the notice of overdue loan collection sent by the bank to the debtor did not specify the specific amount of all the interest owed, which should be regarded as the change and supplement of interest collection in the loan contract between the two parties, and both parties should perform the rights and obligations after the change; The guarantee letter issued by one party has not been clearly defined by the subject, and there is no agreement on the amount of the principal creditor's right, the guarantee period and the guarantee scope. A single letter of commitment can not confirm the fact that the guarantee contract relationship is established; The scope of the priority right of repayment shall be confirmed according to the amount of secured creditor's rights recorded in the mortgage registration. The court of second instance held that the interest items in the notice of collection of overdue loans should include interest, default interest and compound interest, and the notice of collection of overdue loans should not be deemed to exempt the borrower from the obligation to pay default interest and compound interest; With regard to the scope of Priority Repayment of the mortgage right, Article 61 of the interpretation of the security law stipulates that if the contents recorded in the mortgage registration are inconsistent with the mortgage contract, the contents recorded in the registration shall prevail. This provision is a provision on the registration content of the mortgaged property, rather than a provision on the scope of mortgage guarantee. The scope of the priority of compensation shall be subject to the contract; On the issue of joint and several suretyship liability, the suretyship period has passed because the suretyship period has not claimed rights to the surety of joint and several liability within the suretyship period.
[relevant articles] the key articles on which the judgment is based.
Article 26 of the guarantee law of the people's Republic of China stipulates that if the guarantor of a joint and several liability guarantee and the creditor have not agreed on the guarantee period, the creditor has the right to require the guarantor to bear the guarantee liability within six months from the date of expiration of the performance period of the independent debt. If the creditor fails to require the guarantor to bear the suretyship liability during the suretyship period specified in the contract or the suretyship period specified in the preceding paragraph, the guarantor shall be exempted from the suretyship liability.
Article 61 of the interpretation of the security law stipulates that if the contents recorded in the mortgage registration are inconsistent with the mortgage contract, the contents recorded in the registration shall prevail.
[lawyer's opinion] the focus issues involved in this case are: 1. Whether the notice of collection of overdue loans should be regarded as exempting the borrower from the obligation to pay default interest and compound interest; 2、 The scope of Priority Repayment of mortgage right enjoyed by the bank; 3、 Whether the group company and its subsidiaries that have signed the letter of commitment shall bear joint and several guarantee liabilities. The above three issues are typical in financial loan dispute cases. However, on the above issues, the court of first instance made an analysis and judgment against the bank. After undertaking the second instance case, our lawyers formed a professional lawyer team to analyze and demonstrate the case, and finally obtained the second instance judgment.
1. On whether the notice on collection of overdue loans should be regarded as exempting the borrower from the obligation to pay default interest and compound interest. The lawyer believes that it is completely wrong to determine in the first instance that the specific amount of interest owed is no longer specified in the notice of loan collection, which should be regarded as the change and supplement of interest collection in the loan contract by both parties. Both parties agree that the contract change shall be carried out in written form. The notice of collection of overdue loans is only the collection act of the appellant unilaterally exercising the contractual rights, and has no contractual nature. The Dunning letter does not indicate the specific amount of interest owed, which is only the appellant's business habit and does not represent the appellant's waiver of default interest and compound interest. The waiver of civil rights must take the express expression of intention to take legal effect. The implied expression of intention can take legal effect only when the law has clear provisions and the parties have special provisions. It should not be presumed that the parties have waived the rights without clear provisions or special provisions of the law. The above views have also been fully recognized by the court of second instance.
2. On the scope of priority compensation of mortgage rights enjoyed by banks. The lawyer believes that the priority of the obligee is not limited to the amount of creditor's rights and the amount of mortgage recorded in the certificate of other rights, but should also include the scope of other guarantees agreed in the contract. If the court of first instance judges that the limit of the mortgagor's guarantee liability is improper according to the amount of secured creditor's rights recorded in the mortgage registration, it shall be determined according to the contract agreement of both parties. The court of first instance held that "... The mortgage contract signed with Liaoyang bank is also the expression of the true intention of both parties, and the mortgage registration has been handled, which should be legal and effective. Within the mortgage value agreed by both parties, Liaoyang bank enjoys the priority right of compensation according to law. Therefore, the court supports the reasonable part of Liaoyang bank's claim for priority compensation of the collateral." The court of first instance only judged that the mortgagor should bear the guarantee liability with respect to the amount of secured creditor's rights recorded in the mortgage registration. We believe that the priority of the obligee is not limited to the amount of creditor's rights and the amount of mortgage recorded in the certificate of other rights, but should also include other guarantee scope agreed in the contract. Moreover, the mortgage contract is the true expression of the parties' will and should follow the principle of autonomy of will. The above views have also been fully recognized by the court of second instance.
3. On whether the group company and its subsidiaries that signed the letter of commitment should bear joint and several guarantee liabilities. The court of first instance held that "with regard to the question that Liaoyang bank requires the steel pipe factory, Rongxing construction company, Rongxing concrete company and Rongxing development company to bear joint and several guarantee liability for the loan principal of... Yuan and interest owed to Liaoyang bank, Article 13 of the guarantee law stipulates that the guarantor and the creditor shall conclude a guarantee contract in writing. Article 15 of the guarantee law stipulates that the guarantee contract shall include the following contents: (1) The type and amount of the principal creditor's rights guaranteed; (ニ) the time limit for the debtor to perform its obligations; （3） Means of guarantee; （4） Scope of guarantee; （5） Period of guarantee; （6） Other matters that both parties deem necessary to be agreed. If the guarantee contract does not fully contain the contents specified in the preceding paragraph, it may be supplemented and corrected. In this case, except for the commitment letter involved in the case, no other effective contract has been formed between the steel pipe factory, Rongxing construction company, Rongxing concrete company, Rongxing development company and Liaoyang bank to confirm the establishment of the guarantee contract relationship between the two parties. In the working capital loan contract signed by Liaoyang bank and Xingzhe plate group Co., Ltd., the guarantee method of the loan is clearly agreed as mortgage, and it is not mentioned that the guarantee contract relationship is formed due to the letter of commitment issued by the steel pipe factory, Rongxing construction company, Rongxing concrete company and Rongxing development company. Although the letter of commitment involved in the case stated that it agreed to undertake joint and several guarantee responsibilities for the group and its subsidiaries, the letter of commitment did not specify the subject of the subsidiaries, and there was no agreement on the amount of principal creditor's rights and the guarantee period. Therefore, a single letter of commitment could not confirm the fact that the guarantee contract relationship advocated by Liaoyang bank was established. In addition, according to the provisions of paragraph 22 of the interpretation of the Supreme People's Court on ruoqian issues in the general guarantee law of the people's Republic of China (hereinafter referred to as the interpretation of the Guarantee Law), can it be confirmed that the contract is established by the letter of commitment issued by xingsteel pipe factory, Rongxing construction company, Rongxing concrete company and Rongxing development company. According to the first paragraph of Article 10 of the interpretation of the guarantee law, if a third party unilaterally issues a guarantee to the creditor in written form, and the creditor accepts it and raises no objection, the guarantee contract is established. As mentioned above, in this case, when the subject of the debt and the amount of the creditor's rights cannot be determined, the so-called guarantee behavior cannot be determined, and it does not have the attribute of a master-slave contract, let alone the fact that the creditor accepts and raises no objection. On September 15, 2015, the letter of commitment issued by xingrongxing development company for Liaoyang bank did not meet the necessary requirements for the establishment of the guarantee contract. Therefore, for the lawsuit claim of Liaoyang bank that the steel pipe factory, Rongxing construction company, Rongxing concrete company and Rongxing development company should bear joint and several guarantee liability for the principal and interest of the loan owed by Xingzhe plate group company to Liaoyang bank, the court does not support the claim because there is no factual and legal basis. "
According to our search, the above reasoning part of the court of first instance is highly coincident with the reasoning part of (2016) Liao min Zhong No. 627 civil judgment on whether the letter of guarantee constitutes a guarantee contract. We believe that the court of first instance fully referred to the above-mentioned cases to identify this case, but the letter of guarantee involved in the above-mentioned (2016) Liao min Zhong No. 627 case is not consistent with the letter of guarantee in this case, and the letter of commitment involved in this case should have the effect of guarantee. The specific reasons are as follows: (1) the lack of the guaranteed principal creditor's rights, amount and other contents in the letter of commitment does not deny its relevance to the loan in this case, nor does it affect the legal establishment of the guarantee contract. From the content of the letter of commitment as "all financing in your bank (including but not limited to borrowing, loan rollover, etc.)," all financing "includes the debtor's debts involved in the case. Moreover, the time when the appellee issued the letter of commitment was December 31, 2014, which was consistent with the time when the loan contract was signed or the time when the credit business was transferred, and was closely related to the loan in this case. (2) The letter of commitment states that "the group and its subsidiaries hereby undertake that the group and its subsidiaries will jointly assume joint and several guarantee liabilities for all the financing (including but not limited to borrowing, loan rollover, etc.) of the group and its subsidiaries in your bank.", And the parties shall seal and confirm in the letter of commitment. It shall be deemed that each legal entity sealed in the letter of commitment confirms that it is a member of the "group and its subsidiaries" described in the letter of commitment, and is willing to provide and bear joint and several guarantee liabilities for other parties signed and sealed in the letter of commitment. It should be considered that the debt subject is clear. (3) The entities signed and sealed in the letter of commitment are closely related and are all affiliated companies under the actual control of Wang Xingzhe. Wang Xingzhe is not only the largest controlling shareholder of each company, but also the legal representative, principal and executive director of each company. From the background of issuing the letter of commitment, it can be seen that the external debts of each company, especially the loan matters of the same bank during the same period, Wang Xingzhe, as the common legal representative and principal, and each company are clearly aware of. Furthermore, all the entities sealed and confirmed in the letter of commitment are clear and aware of the guaranteed principal creditor's rights, the amount of creditor's rights, and the subject of debt. The statement that each subject confirmed in the commitment letter is an affiliated company under the actual control of Wang Xingzhe: Wang Xingzhe holds 100% of the equity of Liaoyang Rongxing Real Estate Development Co., Ltd. and serves as the legal representative, executive director and general manager; Wang Xingzhe holds 97% of the equity of Liaoyang Rongxing construction and Installation Engineering Co., Ltd., and serves as the legal representative, executive director and manager; Wang Xingzhe holds 90% of the equity of Liaoyang Rongxing concrete mixing Co., Ltd. and serves as the legal representative, executive director and general manager; Wang Xingzhe holds 48.08% of the equity of Liaoyang spiral straight seam steel pipe factory, is the largest controlling shareholder of the company and serves as the legal representative; After equity penetration, Wang Xingzhe held 38.46% equity of Liaoning Xingzhe plate industry group Co., Ltd., becoming the ultimate largest controlling shareholder of the company and serving as the legal representative and executive director. (4) In this case, the letter of commitment has clearly defined the type and amount of the principal creditor's right, the period of debt performance, the guarantee method and the scope of guarantee liability, and has the requirements of the guarantee contract. The letter of commitment in this case is established and effective. In addition, the "group and its subsidiaries" in the commitment letter shall be regarded as the affiliated companies under the actual control of Wang Xingzhe. The letter of commitment issued by the affiliated companies when their affiliated borrowers apply for loans from the creditors is sufficient to make the creditors generate trust interests and believe that they will bear joint and several guarantee liabilities according to the commitments. The letter of commitment shall be recognized as joint and several guarantee. (5) Although the time of signing the letter of commitment is earlier than some of the loan contracts, all of the loan contracts are rollover contracts. Moreover, the guarantee law and relevant judicial interpretations do not clearly stipulate that the guarantee contract whose guarantee time is earlier than the loan time is invalid. Moreover, as a subordinate contract of the loan contract, as long as the main contract is valid, the guarantee contract is also binding on all parties. The nature of the maximum guarantee, that is, the guarantor's right to