What Is a Co-Debtor?

Co-borrowers are common in bank loan business. The most typical is that in a housing mortgage loan, a couple or a co-purchaser of a house as a co-borrower applies for a loan from the bank. The relevant personal loan system clearly stipulates that the co-borrower can The co-owner of the purchased house may also be another natural person who meets the loan requirements. In actual work, the co-owner of the house, as the co-borrower, is better understood and grasped because of the convergence between the co-owner and the co-borrower. But for other natural persons as co-borrowers, due to the inconsistency between other natural persons and co-borrowers, many factors such as motivation, background, etc., as well as complex social and legal relations, asymmetry of information, and more uncertainty , So we must strengthen the prevention of risks arising from such co-borrowers

Co-borrower

Right!

Co-borrowers are common in bank loan business. The most typical is that in a housing mortgage loan, a couple or a co-purchaser of a house as a co-borrower applies for a loan from the bank. The relevant personal loan system clearly stipulates that the co-borrower can The co-owner of the purchased house may also be another natural person who meets the loan requirements. In actual work, the co-owner of the house, as the co-borrower, is better understood and grasped because of the convergence between the co-owner and the co-borrower. But for other natural persons as co-borrowers, due to the inconsistency between other natural persons and co-borrowers, many factors such as motivation, background, etc., as well as complex social and legal relations, asymmetry of information, and more uncertainty , So we must strengthen the prevention of risks arising from such co-borrowers

Chinese name

Co-borrower

Foreign name

co-borrower

Age

Ages 30 to 60

Account

In the county

1. A co-borrower must meet three conditions:

1. Age between 30 and 60 years;

2.Has

Co-borrowers, for creditors, are jointly and severally liable, that is, creditors can claim all claims to any one person, and neither party can counter the claims of creditors with their internal agreement on debt distribution.

There are two kinds of guarantees, one is general guarantee and the other is joint guarantee.

In general car loan agreements, in order to protect the interests of creditors, the guarantee is stipulated in the format contract as a joint guarantee. You can see if the contract you signed clearly states joint and several guarantees. If it is not clear, the legal provisions default to joint guarantees.

If the guarantor is liable for joint and several guarantees, if the guaranteed party cannot repay the debt, the creditor may directly require the joint and several guarantor to assume the debt without initiating legal procedures. On the contrary, if it is a general guarantee, the guarantor can only be required to repay the debt when the creditor tells the court that the debtor is unable to repay the debt.

The difference between a general guarantee and a joint guarantee is that the general guarantee requires the creditor to start legal proceedings to claim that the debtor cannot be satisfied before it can claim to the guarantor.

There is also a difference in the limitation period of litigation for joint borrowers and guarantors.

For the borrower, the creditor can claim for it within 2 years (the calculation point is not specified here), if there is no claim for more than 2 years, the creditor will lose the right to sue, that is, he will sue to the court The court will not support his claim.

The case of the co-borrower

Yin, Liu and Gu are colleagues. On October 18, 2007, Liu lent Yin a million yuan to Yin, and Yin issued a loan receipt to Liu. The following text was printed on the debit note: "Today Liu borrowed RMB 1 million, with a term of 1 year and an annual interest rate of 18%." Yin wrote "borrower Yin" under the debit note. Gu Mou signed in the left margin of the receipt.

After the loan expired, Yin's whereabouts were unknown. Liu Mou sued Gu Mou to the court on the grounds that Gu Mou signed the debit note and requested him to repay the loan principal of 1 million yuan and the corresponding interest. Gu Mou argued in court that although he signed the debit note, he was neither the guarantor nor the co-borrower, but only the certifier, and should not bear the repayment responsibility.

Co-borrowers disagree

The first opinion is that Gu Mou signed on the debit note without writing other contents, which should be regarded as an approval of the loan relationship between Yin Mou and Liu Mou. Therefore, Gu Mo can be presumed to be a co-borrower or guarantor, and judge his commitment. Joint and several liability for repayment of borrowings.

The second opinion is that Gu's signature act cannot constitute a sufficient and necessary condition for his responsibility, and the court should rule to dismiss Liu's claim against Gu.

Analysis of co-borrowers

I prefer the second opinion. The reasons are as follows:

1. From the theory of the constitution of civil legal acts, Gu Mou failed to establish a civil legal act because his intention was unclear or uninteresting. Civil juristic acts are those whose core is expression of meaning. Without meaning, there is no legal act. Mr. Shi Shangkuan believes that "the general establishment of legal acts has three requirements, that is, the parties, the purpose, and the expression of intention. It is impossible to establish a legal act that does not involve the parties, the purpose, or the expression of intention. The expression of the intention does not constitute a legal act. However, the establishment of the expression of interest must be the subject of the expression of interest, and must have the purpose of the occurrence of a specific matter, that is, the content of the legal act. The purpose of the expression of intention is the purpose of law Therefore, there are general requirements for the establishment of legal acts, which are expressed as intentions. "The so-called meaning expression refers to the behavior in which the actor expresses the inner meaning of a certain private law effect to the outside in a certain way. According to German jurists, the expression of meaning includes five elements: intention, effect, expression, behavior, and behavior. Chinese jurists generally believe that the five elements are too cumbersome, and the three elements are more reasonable: the meaning of purpose, the meaning of effect, and the behavior of expression. The first two are subjective elements, the latter are objective elements. In popular terms, the meaning of purpose is to indicate the elements of meaning of the specific content of the legal act; the meaning of effect refers to the intention of the parties to establish a legal relationship; the act of expression refers to the behavior of the person who expresses the meaning of the effect to the outside.

From the available evidence, Gu's signature is located at the upper left of the debit note, not at the "borrower". It can be seen that he has no intention of the borrower to indicate that the borrowing behavior was not established. Liu also acknowledged that the borrowing was actually received and used by Yin.

So, does Gu have a guarantee? Regarding the criteria for judging that an actor has a guarantee meaning, there are theoretically two theories of objective criteria and subjective criteria.

Objective standards say that as long as the guarantor objectively assumes the responsibility for guarantee, the guarantee contract should be established regardless of whether he or she has a subjective commitment to guarantee responsibility. For example, if a third party signs and stamps the column of the guarantor on the main contract without any other explanation, it should be presumed that he has the intention to assume the guaranteed debt. The third party is the guarantor and guarantees the establishment of the contract , The third party cannot deny the existence of the guarantee on the grounds that he is unwilling to bear the guarantee responsibility or did not indicate that he assumes the guarantee responsibility.

The subjective standard theory holds that whether an actor has a guarantee intention belongs to the interpretation of a guarantee contract in a broad sense. Since the "Guarantee Law" of our country has no special provisions on the interpretation of guarantee contracts, the guarantee contract interpretation shall apply the provisions of the "Contract Law". As stipulated in Article 125 of the Contract Law, "If the parties have a dispute on the terms of the contract, they shall determine the authenticity of the terms according to the terms used in the contract, the relevant provisions of the contract, the purpose of the contract, the transaction habits, and the principle of good faith. Therefore, the interpretation of the guarantee contract should still be aimed at exploring the true intentions of the parties, and subjective criteria should be used as the criterion for the interpretation of the guarantee intention.

Because the subjective standard theory is too flexible in the determination of the meaning expression of the guarantor, the objective standard theory is generally adopted in China's judicial practice. For example, Article 22 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of the "Guarantee Law of the People's Republic of China" stipulates: "Although there is no guarantee clause in the main contract, if the guarantor signs or seals the guarantor on the main contract, The guarantee contract was established. "The Supreme People's Court's Reply on How the People's Court Should Determine the Guarantor to Sign the Dunning Notice After the Guarantee Period Has Expired (Fujian [2004] No. 4) expressed the same position: After the liability is extinguished, the creditor notifies the guarantor in writing to demand guaranty liability or pay off the debt. If the guarantor signs the dunning notice, the people's court shall not determine that the guarantor will continue to assume guaranty liability. Where the provisions on the establishment of a guarantee contract are signed and approved by the guarantor, and a new guarantee contract can be established, the people's court shall determine that the guarantor is liable in accordance with the new guarantee contract. "

In fact, the subjective standard theory is more conducive to protecting the interests of the "guarantor" as the debtor of the single service contract, because it is to explore the true meaning of the actor.

Similarly, the establishment of a guarantee legal relationship is also premised on the parties' explicit willingness to assume the responsibility for guarantee. It is also not clear from the evidence that Gu has such purpose and effect, so the guarantee act is also unfounded.

2. The legal relationship cannot be presumed to have been established without the actor giving a true and clear expression of intention to provide the guarantee.

Guaranty liability is different from general civil liability. It is a kind of one-off, unpaid legal liability assumed by the guarantor based on the special relationship with the debtor. It does not enjoy the right to request the other party to treat the payment. It is precisely because of the qualitative difference between guarantee liability and general debt that guarantees cannot be applied as presumably as other civil acts. "Guarantee cannot be presumed" is a principle. In Anglo-American law, the court generally believes that the guarantee contract should adopt an interpretation in favor of the guarantor. In cases where the name and content of the document are ambiguous, the guarantee cannot be easily established. In the civil law system, there are generally provisions such as "guarantee shall not be presumed" and "guarantee shall be made explicit" (Article 2015 of the French Civil Code). Article 13 of the Supreme People's Court's "Several Opinions on the Trial of Lending Cases by the People's Court" (Law (Min.) <1991> No. 21 of August 13, 1991) clearly states: "In the lending relationship, only contact and introduction Those who play a role do not bear the responsibility of guarantee. If there is indeed a guarantee of the performance of the debt, it should be identified as the guarantor and bear the responsibility of guarantee. "Therefore, the premise of the people's court that the party assumes the responsibility for guarantee is that the contract must" have "Guarantee expression of intent", rather than the presumption that the perpetrator has a guaranteed expression of intent.

In this case, it is actually a presumption that the parties are required to assume the liability for guarantee based solely on the act of their signature, but this presumption violates the basic principle of the guarantee law of "guarantee cannot be presumed" and will lead to an overly favored party (creditor ) Interest and the deprivation of the legitimate rights of the other party.

3. From the perspective of the principle of fair interpretation, it is more reasonable to find that Gu is not responsible for repaying the loan.

Fair interpretation is one of the important principles in the interpretation of civil law. It requires that if the meaning expressed by the parties to the contract is ambiguous, the court should take into account the interests of both parties on the basis of differential treatment: if it is an unpaid contract, it should be lighter to the obligor. If the contract is paid, it should be interpreted as meaning fair to both parties. Judges must overcome preconceived mindsets when trying cases that require interpretation of the contract. They cannot just presume that Gu must bear some responsibility just by signing the bill.