Note: I am not too much in favor of the debtor to make full use of the limitation of action to protect their own interests, but for the legacy of the debt, and the creditor is the non-performing assets of the acquirer, the debtor should make full use of the limitation of action to protect state-owned property is not lost, this is because of the relatively low price of a toxic asset itself is bad bank loans. The transferee of assets, the existing collection risk and creditor rights exist defects have reasonably expected, including the period of limitation of two is expected, some bad assets of the transferee is itself is not standardized, individual staff including the assignor and the assignee to damage the interests of the state act, three is the main debt assets after the transfer is not the original debts subject, the loan relationship does not exist, you can at the same time, use of the rule of law evasion of debts not only the integrity of state-owned assets, or the proper legal protection. This is the author and his colleagues in two cases in treatment, the two cases makes good use of the prescription of action and guarantee the rule of law period related to protect the interests of the company.

One case, not in the creditor's rights guarantee period to ensure party claims rights, the guarantor shall have the right to refuse to undertake suretyship liability

Case synopsis

1994Years1Month4Day,A companySigned a loan contract and the bank trust (trust incorporated after CCB CCB CCB), to trust loans50Million yuan, the loan period1994Years1Month4To1994Years43 march. The contract loan interest: as stipulated in the contract, the repayment period, the monthly interest rate of 13/1000. Five computing; more than the repayment period, repayment of additional interest on overdue twenty percent. Interest quarterly payment.AIn the interest of fifteen days from the date of delivery of the CCB internal reimbursement trust, fails to pay and pay the penalty according to every 3/10000.B companyAsASponsor, inARepayment exceeds the term of the contract, within three months and is still unable to repay the loan, byBResponsible for settlement.ABecause of not to accept annual inspection in accordance with the regulations, the Bureau of industry and Commerce in the2005Years1Month26For its decision to revoke the business license. CCB to2004Years6MonthAOwe the bank loan principal41Million yuan and the corresponding interest transfer to XinDa Nanjing office, and the transfer of claims and collection notice.2004Years12Month XinDa Nanjing office and the amount of creditor's right to the East Nanjing office, and the transfer of claims and collection notice.2008Years4East Nanjing office month writing for the creditor's right to a, and a notice. End2008Years4Month30Day, the pen and total debt72.55Million yuan. A to2010Years3Month18To theBMail the debt collection letter, requestBOn the ten day after the letterAOwe a debt principal and interest and other expenses related to fulfill security responsibilities, and in2010Years3Month25Notarization of evidence preservation of collection letter, and in2012Years2Month28Again toBA collection of letters, and in2012Years3Month8Day of the notary evidence preservation of collection letter.

AsBAgent, we made the following analysis, and a relevant certification materials, after a failed to provide, nor toBCollection.

Case1Analysis

1The problem, applicable laws and legal convergence

  Because B and CCB's loan guarantee contract signing time1994Years1Month4Day,Belong to1994Years4Month15That day behavior occurred before, should be applied to (2002) 144"Effect of the Supreme People's Court on occurred before the guarantee law undertakes to notify the guarantee period issues "(hereinafter referred to as the notice) to guarantee period stipulated.

2The modes of suretyship liability, and the guarantee period

(a) the modes of suretyship liability as a general guarantee

YesAResponsibility to ensure that no agreed in the loan contract, in02"The Supreme People's court for years about the judicial interpretations to guarantee dispute cases and certification of the modes of suretyship liability" (hereinafter referred to as approved) in replyTo make clear, "before the guarantee law came into effect in a guarantee contract of suretyship liability manner is not agreed or the agreement is not clear, should be regarded as a general guarantee. Ensure clear agree that the people in the debtor fails to perform the debt began to assume responsibility for the contract, as a general guarantee. Ensure the contract clearly agreed that people in the warrantee nonperformance debt suretyship liability, and according to the parties intention presumption not as a general guarantee liability, as joint liability guarantee."

AThe loan contract clearly agreed:"In theARepayment exceeds the term of the contract, within three months and is still unable to repay the loan, byBResponsible for settlement." Other provisions of the contract does not involve guarantee, according to "approved" requirement, can be identifiedBAs a general guarantee, undertaking the liability of guarantee.

(two) ensure that specific period

For94Years4Month15Which took place a few days ago, how to determine the liability for guaranty problems, specific to the case mainly comprises the following two situations:

1), a toARights advocate, but not toBRights advocate

For a "guarantee law" before the implementation of the contract period to ensure that no agreement or the agreement is not clear, "notice" imposed by a period of guarantee."Notice" provisions,"The parties signed in before the guarantee law took effect in the guarantee contract is not agreed period of guarantee or the agreement is not clear, if the creditor has within the statutory limitation the principal debtor claim rights, so that the main debt not exceed the limitation, but not to guarantee the party claims rights, the creditor can be issued since the date of this notice6Month(Since the2002Years8Month1To2003Years1Month31Day)Inside, to guarantee that the rights of. If no claims, guarantor assumes no responsibility. The notice issued, has been the case, the retrial case as well as the principal debt has exceeded the limitation of action cases, does not apply to this notice." IfAThe loan is not a limitation of action, the CCB in2002Years8Month1To2003Years1Month31Day within the time periodBRights advocate, isBThe nail should bear the obligation of repayment guarantee. Otherwise a fails to claim,BNeed not undertake suretyship liability, byATo repay the debt interest and related costs to a. But because ofAIn the2005Years1Month5On the revocation of the business license, a toAThe obligor of liquidation is man's shareholders claim settlement.

2), a toBRights advocate

If a is in the guarantee period or during the judicial interpretation to the provisions of theBAdvocate the overdue receivables,BTo be a bear the liability of guarantee, but as a pair ofACreditor have limitation, as a general guarantee guarantorBEnjoyAFor a lawsuit right of defense.

3, the limitation of action and the burden of proof

First of all, a pair of debt before the limitation of action shall bear the burden of proof. Specifically, the burden of the loan term within two years from the date of (self1994Years4Month5To1996Years4Month5To date)ARights advocate, and has since continued toACall loan, the sum of debt before litigation. The existing data show that,04Years6Month,12Months and08Years4The loan has transferred to XinDa, Oriental, eventually by a transferee. According to the "Regulations on some issues of applicable law concerning financial Asset Management Co acquisition, management, disposal of non-performing loans of state-owned banks in the formation of asset cases of the Supreme People's court" (Interpretation[2001]12No.),"The Supreme People's Court on the implementation of the" Supreme People's court"Article twelve"The judicial interpretation of "reply letter (the letter of law[2002]3"No.),In the original creditor banks China Construction Bank signed a credit assignment agreement and financial Asset Management Co date, constitute a limitation of actions. Financial Asset Management Co to undertake the creditor's rights, in the national or provincial influential newspapers to publish the collection notice way interruption of prescription(Rights advocate)Evidence. But if the creditor have limitation, then even the announcement cannot recover litigation rights. Secondly, if the creditor has not been a limitation of action, the guarantee period withinBThe burden of claim. Specifically, the burden of proof in the "notice" issued shall be the date6Month period (from2002Years8Month1To2003Years1Month31Days) had toBCall loan. Otherwise,BDon't assume the corresponding repayment obligations.

The existing evidence,BNot only can the creditor have limitation, can also ensure a claim during not refused on the grounds of a creditor's rights.

 

Case two, non bank financial institutions only notice to the creditors claim the creditor's right, not enough to make the interruption of prescription

Case synopsis:

(a) Agricultural Bank ofA,BThe creditor's rights and the recovery of the situation

1997Years11Month13Day,DTo the Agricultural Bank Loan2126Million yuan, the return of principal2Million yuan, the loan principal balance2124Million yuan. ByCThis loan guarantees.2000Years3Month18Day, the Agricultural Bank will transfer the sum of debt to China the Great Wall Asset Management Co (hereinafter referred to as "Great Wall Co").

2002Years3Month8DayGreat Wall Co, as a plaintiff, toA,BAs a joint defendant to the courts (BAndCThe name just limited "limited" two words, the rest are the same), requirementsARepayment of the loan,BAssume joint responsibility for security. The court in2002Years5Month20Day of judgement: (1)AGreat Wall Co should pay the loan principal2124Million, interest770.89Wan (calculated to2000Years3Month20Day);2ForAThe guarantee systemC,CCivil liability shall be borne by theDBear, the plaintiff's claimBYesARepayment shall bear joint and several liability without legal basis, rejected the Great Wall CoBLitigation request.

The Great Wall Co may appeal to the Supreme Court, the high court, in2002Years11Month7Make final judgement: (1Maintenance requirements)ALoan repayment decision to the Great Wall (Asset Management Co2) that"BSystemDAnnexCLegal person after the re registration, andCNot the same unit. A trial period, the Great Wall Co toBAs a defendant, but the time limit for adducing evidence fails to provide the legal requirements shall be jointly and severally liable evidence. The court accordingly finds Great Wall Co requirementsBBear no legal basis for the joint and several liability, there is no improper. But the trial court dismissed the claim to the judgment of the Great Wall Co is wrong, should be corrected." The Supreme Court ruled on the same day: reject the Great Wall CoBProsecution.

2005Years9Month20DayThe assignment of creditor's rights, the Great Wall Co will give foreign investors a, and obtain the approval of relevant departments.

Two.C,D,BRelationship

CWas founded in1982Years, nature of national enterprises.1998Years10Month8Day, city merger and bankruptcy and the reemployment of workers work coordination group "to make aDAnnexC"The reply, the reply: (1AgreeDThe whole allocation mergerC(2)CAll assets, debts, the original creditor's rights and personnel under theD.CAfter the takeover in1999Years3Month18On the cancellation of business.

1999Years3Month16Day,D,C,GSigned "about theBProperty description "states:" according to the City Hall spirit of harmony, in the formation ofBIn the,DIn order toCAssets, including the now establishedBHouse, building. The above isBDomicile of origin."

1999Years3Month18Day,BThe establishment of,DIn kind contribution3211.5Million shares, accounting for95%,HIn cash169Million shares, accounting for5%.

The material, can be drawn: (1)BAndCIs a legal person independent (2)CBeDThe absorption of the merger (3)DIs it fromCThe acquired assets used as onBInvestment.

A, right and claim evidence

A proof of the following materialsA,BThe creditor's rights in litigation limitation:

1,1997Years11Month13Day,ATo the agricultural bank loans2126Million yuan,CThe commitment to joint guarantee responsibility.

2,1999Years3Month10Day, ABC through notarization toCMail "to guarantee obligation of notice".

3,2000Years3Month18Day, ABC will be the transfer of creditor's rights to the Great Wall Co.

4,2001Years2Month5Day, the Great Wall Co through the notary office toA,CDebt collection notice.

5,2002Years4Month15Day, the Great Wall Co atA,BProceedings for the defendant.

6,2002Years11Month7Day, the Supreme Court made the final judgment and ruling, decisionARepayment of loans, the court rejected the Great Wall CoBProsecution.

7,2003Years11Month19Day, the Great Wall Co announced debt collection.

8,2005Years11Month17Day, the Great Wall Co announced debt collection.

9,2005Years9Month20Day, the Great Wall Co will its creditor's right to a.

10,2006Years3Month6Day, a joint Great Wall Co debt collection notice.

11,2008Years3Month5Day, a public debt collection.

12,2010Years3Month2On the way to the post office, a registered letter to theASend a reminder letter. Mail recipient:"A, responsible person ", but did not specify the mail envelope recipient address, no material showed a to guaranteeCThe mail collection.

13,2012Years3Month2On the way to the post office, a registered letter to theA,CSend a reminder letter. Mail recipient respectively:"A, responsible person","C, responsible person ", but did not specify the mail envelope recipient address.

Analysis of two, statute law

(1)2002Great Wall Co to courtA,BSue day, the Great Wall management companyA,BPrescription litigation claim secured interruption, re calculation limitation. (assuming the Great Wall CoBA creditor)

(2The Supreme Court ruled that, Great Wall Co),AThe announcement collection, collection by the notary, collection is still the mainC, not toBAdvocates, so is theBThe claim exceeds the limitation of action?

We think, the limitation of action is designed to promote the rights of people to actively exercise their rights, to prevent the right people sleeping on power. So the right people need timely, appropriate rights advocate, one claim performance rights properly is to appropriate the debtor claim. In the high court cognizanceCAndBNot the same subject,CThe situation has been cancelled, a still adhere to theCRights advocate, and not toBAny claim. Therefore, even if a toBThere are substantive rights, because of the improper claims, theBThe claim should exceed the limitation of action (in particular, the relationship between the court ruling, B and C of such legal presumption can be followed by Great Wall Co and Great Wall Co, the rights and obligations of a clearly knows or ought to know that B and C are two independent, therefore, the main rights of mistake can not be identified the claim right, it shall bear the adverse consequences of that error limitation expired).

(3) from2008Years3Month5Day, whether a debt collection notice effect limitation interrupt?

The Great Wall Co will its creditor's right to a post, a become creditors, the problem related to the bad assets from the Asset Management Co of the assignee can through the bulletin collection way assert a claim? The creditor's rights is a limitation of actions?

From the existing legislative provisions, announcement or notice, overdue financial asset company receiving state-owned bank creditor's rights issue only state-owned banks to finance the asset company the assignment of creditor's right when the announcement or notice of collection and financial asset company has to undertake a claim to the debtor hair cloth collection notice or notification, can break the limitation of action, in addition, take notice that the rights of way cannot produce effect of interruption of limitation of action[1]. That's the transferee notice the way through that claims the from the Asset Management Co, not a limitation of actions, unless a burden of proof to prove that the situation is not to claim that the service by public notice.

(4)2010Years3Month2On the way to the post office, a registered letter to theASending Dunning letters, and2012Years3Month2On the way to the post office, a registered letter to theA,CSend a reminder letter. The notarization mail collection letters will mean that the interruption of prescription?

In this regard, we think, debt collection by notarization is a legal way, if mail collection with claims the legal requirements, can constitute a limitation of action shall be interrupted. Then this mail collection for compliance with statutory requirements?

From a notarized debt collection of documents, there is a flaw: although its mail collection, but you didn't write the address on the envelope, just write the name of the recipient, such letters to the recipient received, also cannot prove the "should" be recipient received.

So even the notarization mail, notarization is merely proof that the creditors to mail something. But because the mail things obviously cannot or should not be received by the recipient of the service by post, the interruption of statute of limitations can not produce legal effect.

(5If a principal creditor)AInterruption of limitation of action, theB(is regarded as theCThe guarantee shall be liable) limitation is suspended?

Through the above analysis, we can see a onAClaim process, especially the announcement means change, notarization mail collection significant flaws, if we ignore these flaws, namely a toAThe claims have effect the interruption of the limitation of actions, ifBWas identified as to guarantee responsibility, even if its not toBDirect claim right, theBAlso the effect of interruption of statute of limitations?

In this regard, we believe that: according to the "security law" judicial interpretation of the provisions of article thirty-sixth,General guarantee, the limitation interrupt the main debt, debt guarantee interruption of limitation;Joint liability guarantee, interrupt the main debt limitation, limitation of action does not interrupt the guaranteed debt. According to the provisions,Interrupt the main debt limitation,Does not lead to joint liability guarantee debt limitation interrupt. That is, even if a toAInterruption of limitation of action, because it fails toBTimely claims, theBLimitation of action without interruption.

Therefore, based on the above analysis, based on existing material, we think:A pair ofA,BThe claim has exceeded the limitation of action.

 

The case2Analysis of other legal issues

1A right to claim, whetherBYesABear joint and several liability lawsuit again?

As mentioned before, the high court in2002Years11Month7Japan made a final "civil judgment" and "civil Award", the court rejected the Great Wall Co to withdrawBLitigation request the decision, the court rejected the Great Wall Co to changeBProsecution.

Dismissed the action request and rejected the prosecution are two different processing form, there are many differences, one of the important difference is that: dismissed the action request, the parties can only through the appeals process requesting a retrial, the retrial procedure generally difficult to start; but to dismiss the lawsuit, the parties in the meet the prosecution condition, can again a lawsuit.

The Supreme Court's ruling[2]Mean, Great Wall Co after the ruling still have the right to bring a lawsuit,BNot to non bis in idem as a defense. The Great Wall Co will assign its rights to a post, which has a corresponding right to sue.

2Again, if a lawsuit, requestBAssume joint responsibility for security, the body that will get the support of the court?

As in the previous analysis,BAndCAlthough the names are similar, but the two independent legal person, usually the case, can not be both responsibilities. But take on these two corporate responsibility, we also need to consider the background of the historical connection between two enterprises and restructuring of state owned enterprises.

CBeDThe absorption of the merger, the debt shall beDBear.DShould bearCOn a joint guarantee liability,DThe obtainedCAssets intoBAlso, if the guarantee responsibility extends toB?

This problem,2003Years ago and not clearly defined.2003The Supreme People's Court promulgated "Regulations" on the problem of restructuring the trial of cases of civil disputes and enterprises related to the number of the provisions of article seventh, which stipulates: "the enterprise to form a new company and others in its high-quality property, while the debt in their original enterprises, creditors to the new company and the original enterprises as joint defendants filed a lawsuit claiming debt the new company shall, in the property scope with the original enterprise jointly and severally liable."[3]

DThe absorption of the mergerCAnd, that isCCom. According to this provision, such as a can provide evidence to prove that theD"The quality of property (i.e. the originalCAsset quality assets) and others to form a new company (i.e.B), and the debt in their original enterprises (i.e.DThe fact that the requirements), the newly formed company (i.e.B) in its acceptance range and propertyD"There are jointly and severally liable for the support of the court may. According to the currentDThe status of assets, does not exclude the court to support a claim, but the action of the a time effect at the beginning of know the situation, the latest in a final judgment after received the court began, therefore, at present, the claim a have limitation.

3How to understand the judicial interpretation, the limitation of actionArticle second "seventeenth on one of the joint and several debtors have the limitation of action in the effect of interruption of business, shall be determined to have the effect of interruption of statute of limitations on the other joint debtors." Interpretation and the Guaranty LawArticle thirty-sixth "general guarantee, the limitation interrupt the main debt, debt guarantee interruption of limitation;Joint liability guarantee, interrupt the main debt limitation, limitation of action does not interrupt the guaranteed debt." Relationship.

Joint and several liability limitation of judicial interpretation refers to the joint and several liability of joint and several liability is real, the world can be the recourse to bear more than their own responsibility, and guarantee the joint and several liability arising from the guarantee law judicial interpretation is the unreal joint obligation, the guarantor shall bear liability can be against the debtor, the debtor is the ultimate the responsibility, therefore, the limitation of action in the joint responsibility to ensure that the limitation of action, the creditor should not only maintain the principal debtor, but also to maintain the limitation of the guarantor, the limitation of action is independent of both.

4The creditor to the debtor, the debtor shall claim rights, arrive to interrupt the limitation of action. The limitation of judicial interpretation of article tenth"(two) a party to send a letter or data message that the rights of way, a letter or data message should be to reach or arrive at the other party;",A claim on this case, do not write the address, it must be able to demonstrate to the debtor can cause the interruption of prescription.

5Notice that, general creditor claims caused by the interruption of the limitation of actions, only missing the debtor applies. The limitation of judicial interpretation of article tenth"(four) if a party One's whereabouts is a mystery., the other party media at the national level or One's whereabouts is a mystery. party domiciled provincial influential published content of the announcement of the right to claim, but the special provisions of law and judicial interpretation provides otherwise, such provisions shall be applied."

Case1The relevant law

1, some opinions of the Supreme People's court "about people's court lending case"(the August 13, 1991 law (Civil) <1991> 21)

16 guarantee of debt after the maturity of the debt, the debtor has the ability of repayment by the debtor, responsibility;The debtor without pay, unable to pay or debtor One's whereabouts is a mystery., the guarantor shall bear joint and several liability.
   The borrowing period expires, if the debtor does not repay, debit and credit, both sides did not seek consent to ensure repayment or interest rate to reach an agreement, the guarantor will not bear the liability of guarantee.
   No guarantee of debt disputes, the debtor to apply for additional new guarantor to participate in litigation, the court should not permit.
To ensure the responsibility of controversial, in accordance with the "opinions" (for Trial Implementation) the provisions of article 108th, Article 109, Article 110 treatment.

2,"Effect of the Supreme People's Court on occurred before the guarantee law undertakes to notify the guarantee period issues "(Law[2002]144No.)

The parties signed in before the guarantee law took effect in the guarantee contract is not agreed period of guarantee or the agreement is not clear,If the creditor has within the statutory limitation the principal debtor claim rights, so that the main debt not exceed the limitation, but not to guarantee the party claims rights, the creditor can be issued since the date of this notice6Month(Since the2002Years8Month1To2003Years1Month31Day)Inside, to guarantee that the rights of. If no claims, guarantor assumes no responsibility.

The notice issued, has been the case, the retrial case as well as the principal debt has exceeded the limitation of action cases, does not apply to this notice.

3, "the Supreme People's Court on the judicial interpretations to guarantee dispute cases of application and certification of the modes of suretyship liability" (Interpretation (reply2002)38No.)

The Supreme People's Court issued in 1994 8 "on the trialEconomicsContract disputes"To ensure that the relevant provisions of the applicable cases occurred in the implementation of the provisions, the guarantee dispute cases and the implementation of the provisions have not yet concluded before the occurrence of the first trial, second instance guarantee dispute cases. The implementation of the provisions of the judgment, ruling has occurredLawEffective guarantee dispute cases, for a retrial, the "shall not apply". "The guarantee behavior and guarantee dispute PRC security law" after the entry into force of the provisions, the relevant judicial interpretations of the applicable law and the guarantee law. And the guarantee law and the judicial interpretation of the relevant provisions. The judicial interpretation of the relevant provisions. 
Two,Before the guarantee law came into effect in a guarantee contract of suretyship liability manner is not agreed or the agreement is not clear, should be regarded as a general guarantee. Ensure clear agree that the people in the debtor fails to perform the debt began to assume responsibility for the contract, as a general guarantee. Ensure the contract clearly agreed that people in the warrantee nonperformance debt suretyship liability, and according to the parties intention presumption not as a general guarantee liability, as joint liability guarantee. 
In the implementation of this reply, judgment, ruling has already happenedLawThe effectiveness of collateral dispute case, the party applying retrial according to the procedure of judicial supervision or retrial, not applicable this reply. 
4, "Supreme People's Court on the trial involving financial Asset Management Co acquisition, management, disposal of non-performing loans of the state-owned banks assets case applicable legal provisions" (Interpretation[2001]12No.)

Article tenth the debtor in the credit assignment agreement, the notice of assignment of rights on the signature or signed the debt collection notice,Interruption of prescription. The original creditor banks issued at the national or provincial influential newspaper announcement or notice of assignment of the obligee's right, a debt collection content, the announcement or notice can be used as evidence of the limitation of actions.

   Article eleventh the term financial Asset Management Co including the legally established offices in various places.

   Twelfth the provisions shall apply only the case to trial involving financial Asset Management Co acquisition, management, disposal of non-performing loans of state-owned banks in the formation of assets. 　　　　　　　　　　　

5, "the Supreme People's Court on the implementation of the" Supreme People's court"Article twelve"The judicial interpretation of "reply letter (the letter of law[2002]3"No.)

XinDa, Huarong, the Great Wall, East Asset Management Co:

On the basis of my courtyard "on some issues of applicable law cases concerning financial Asset Management Co acquisition, management, disposal of non-performing loans of state-owned banks in the formation of asset provisions"(Hereinafter referred to as the "Regulations")The provisions of article tenth, in order to maximize the national assetsInterruption of limitation, a financial Asset Management Co released at the national or provincial influential newspapers have collection content announcement or notice of assignment of the obligee's right, can be traced back to the original creditor bank debt financial Asset Management Co, Asset Management Co; financial claims to have to undertake, in the newspaper to publish the collection notice way action interruption of prescription(Rights advocate)Evidence.Litigation cases involving Asset Management Co to dispose non-performing assets, its "jurisdiction" should be the "Regulations" implementation.