Abstract  To

Preface:Many Guarantee Corporation hand the use of "property law" article176The provisions of article,In both the material guarantee, and guarantee that the case,Guarantee corporation only bear the collateral vehicle owners fail to deliver value for bank loans added security responsibility, a high margin; hand using the format of the terms of the contract, forced on the owners of the automobile"Collecting tube". So, whether the Guarantee Corporation has the right in accordance with the contract, directly to the seizure of vehicles without the consent of the owners?

Preface:Using the current many Guarantee Corporation hand "The property law"Article176The provisions of article,In both the material guarantee, and under the condition of ensuring that the Guarantee Corporation, only bear the owners to provideCollateralVehicle value is insufficient to offset theBank loansSupplementary liability, a highBond; hand use the format of the terms of the contract, forced on the owners of the automobile"Collecting tube". So, whether the Guarantee Corporation has the right in accordance with the contract, directly to the seizure of vehicles without the consent of the owners?
One, the basic facts of the case
The plaintiff ZhangXXAnd the defendantXXGuarantee Corporation2009Years6Month22Signed a "personal carLoan guaranteeContract ",The defendant to provide guarantee for the plaintiff agreed. The defendant in2010Years3Month25The day for all the license for the SichuanA168X3Excelle car seized,Also has not. Although the plaintiff repeatedly with representations,But if the defendant refuses to return, to the plaintiff causing greatEconomic loss. Therefore the plaintiff to safeguard their legitimate rights and interests, please the prosecution in accordance with the law, request to order the defendant to return the plaintiff all licenses for SichuanA168X3Excelle car;The plaintiff compensation for economic losses2Million yuan.
Two, lawyers analysis:
(a),The defendant has no right to detain the vehicle
In accordance with theThe Guarantee LawArticle thirty-first"GuarantorBearThe guarantee liabilityLater, have the recourse against the debtor"Regulations, ensure people only assume the responsibility of the security, has the right to recourse against the debtor.
In this case,The repayment of bank records show the normal repayment, the defendant did not replace the plaintiff to banks to assume security responsibility,Between the original defendant without anyDebtUnder the condition of the plaintiff, defendant carThe illegal seizureSo far,The plaintiff did not know why the defendant seized vehicles,Not been accused of any notice,Fail to perform the procedures for the delivery of any,No evidence of the plaintiff defendant seized car behavior, the defendant has no right to detain the vehicle.
From the2010Years3Month25The defendant to the plaintiff, a car all the illegal forcible seizure behavior,In other words,The car has not been the seizure the plaintiff agreed,The meaning of behavior between the original defendant did not agree the seizure of vehicles,The defendant seized car behavior is a kind of illegal occupation of the property,The defendant shall assume all liability.
(two) even if in accordance with the contract,The defendant has no right to detain the vehicle.
The defendant in the<Counterclaim>And<Change of litigious claim application>That is the basis of respectively<Contract of guarantee>In the sixth chapter4.BSection six4,DThe exercise of the vehicle"Escrow"Right, and requested the plaintiffLiability for breach of contract.But careful inspection<Contract of guarantee>The relevant provisions, we can find that, even if the defendant in accordance with the contract has no right to detain the vehicle.
1,<Contract of guarantee>Sixth Party Rights4,D"Party B has more than three consecutive or accumulated more than four times (including four) fails to perform the obligation of repayment behavior in,Party BFundamental breach of contract,Party A has the right to unilaterally direct announced the suspension of guarantees, require Party B to return all loans immediately, at the same time, Party B shall bear the total purchase a car in this contract section20%Compensation and the total amount of this guarantee30%TheLiquidated damages. At the same time, Party A shall have the right to own or entrust a professional institution or authority of the mortgage guarantee vehicles for collecting tube and as mentioned before disposal, disposal costs(Notarization fee,Litigation costsNon litigation fees, survey,Execution fee, agency fees, parking fees and expense of credit realization)This clause shall be borne by Party BDefault clauseAnd the terms of compensation for damages at the same time, not enough to compensate for losses caused by Party B to Party A in time,Party A shall have the right to demand"The vehicle performance"Escrow"Rights and requires the plaintiff to pay compensation for the losses,But this article applies the premise is"Party B has more than three consecutive or accumulated more than four times (including four) fails to perform the obligation of repayment behavior in,"According to the agreement,Only the three month in a row that is at least for the plaintiff90Day,Does not fulfill the repayment obligations of parties can be found the fundamental breach of contract,To use this article,The defendant in the<ChangeThe claim form>Claims"End2009Years12Month31The anti people has been overdue day4Not according to the contract on time/Full payment of monthly",But the evidence can not prove that the plaintiff has the default behavior,This article does not apply to the plaintiff.
2The defendant for the plaintiff, unilaterally announced the suspension of guarantees is the premise to apply the provisions of
Applicable<Contract of guarantee>In sixth4,D,There is a prerequisite,Is that the defendant must unilaterally announced the suspension of guarantees for the plaintiff,And the return of all loans immediately after,Have the right to request the plaintiff and other aspects of the liability for breach of contract,And at the same time to dispose of the mortgage guarantee vehicle.But in this case the plaintiff today is not has not received notice of any aspect of the defendant,Have not received any requests the defendant proposed,The defendant has no right under this article seized the car.

3If the plaintiff paid in full, the contract to pay off the loan and other expenses the defendant must unconditionally return the car
"Guarantee contract" Sixth4,BExpressed as"Have the right to request Party B will be the payment for goods purchased car to party a collecting tube,Until the party full pay off the loan and other related expenses or increase in property mortgaged or hypothecated deposit certificate in full",That is to say,Even if the defendant is in accordance with the contract of guarantee buckle car,But as long as the pay off bank loans and related expenses,The defendant must unconditionally return the plaintiff vehicle,And the plaintiff to2010Years5Month28Japan has been to the bank returned all loans and expenses,The defendant from now on should be returned unconditionally detained vehicles.And the defendant is to continue the vehicle seized so far.

The above analysis can be seen, even by the defendant to provide the format of the contract,The defendant shall not be entitled to detain the vehicle.

(three), between the original defendantThe rights and obligations under the contractUnfair

1In the presence of warranty, condition,Very little of the defendant bear guarantee liability.

For the bank7.1Million yuan of loans,The plaintiff to provide value for the10Mortgage million vehicles,The defendant also provides assurance.In accordance with the<The property law>176th the provisions of,In both the material guarantee, and Guarantee Corporation have guaranteed, a Guarantee Corporation shall bear guarantee liability is just the collateral for the plaintiff to provide--The car value is insufficient to offset the debt part shall bear supplementary liability.
According to the plaintiff and the insurance company agreed,The bank is the first mortgage vehicleBeneficiary. Even if the plaintiff hasA major traffic accidentAlso, the bank can get sufficient compensation from the insurance company.
Can be seen from the above analysis,The plaintiff has provided value goes beyond the mortgage loan amount after,The defendant bear the guarantee responsibility very little.The defendant in the bank/Play the interaction is more of aThe contract of brokerageRelationship,Just as an intermediary to obtain loans from the bank to help the introduction of service,The defendant has no right to give the plaintiff a high security costs and damages.It has no right to the plaintiff all vehicles seized so far.

2,The defendant providedFormat clausesFrom its should undertake the guarantee responsibility, increase the responsibility, the terms shall be invalid.

The original defendantThe legal relationshipIs the guarantee contract,The plaintiff to the defendant to pay the guarantee fee purchase contract consideration is:The plaintiff in the purchase value10Million vehicles---Collateral is not sufficient to return7.1Million yuan of bank loans,The plaintiff accused instead undertake the responsibility of compensation to the banks.Originally, the defendant bear the responsibility of compensation is very limited or even just doesn't happen,But the defendant has agreed in the contract,If the plaintiff must have"Party B has more than three consecutive or accumulated more than four times (including four) fails to perform the obligation of repayment behavior in,"The defendant has the right to unilaterally, direct announced the suspension of guarantees, requires the plaintiff to return all loans immediately, also requires the plaintiff to bear the total purchase a car20%The total amount of compensation and guarantee30%The liquidated damages. And has the right to own or entrust a professional institution or authority of the mortgage guarantee vehicles for collecting tube and as mentioned before disposal. This clause is in fact the agreement if Party B has more than three consecutive or accumulated more than four times (including four) fails to perform the obligation of repayment behavior in,"Behavior,The format of the terms given the defendant did not assume responsibility for security, no debts between the original defendant's case, the defendant has the right to unilaterally terminate the contract of guarantee,The early repayment requirements,Seize the vehicle, requires the plaintiff to bear the liability for breach of contract.That is exempt from the defendant the plaintiff to replace bank undertakes the responsibility of compensation,Also excluded the plaintiff can be in a bankLoan contractBasic rights within the range of allowable delay repayment, aggravate the plaintiff's responsibility, in accordance with the "Contract Law"Article fortieth [] this method has invalid format clauses fifty-second and fifty-third under the circumstances stipulated in the terms of the format, or provide one format articles from its liabilities, increases the liabilities of the other party, excludes the rights of the other party, the terms shall be invalid. At the National People's Congress Standing Committee, "the people's Republic of China Contract Law Interpretation" of article71This page is for "contract law" article fortieth definition of invalid"If the party that provides the standard clauses exempts itself from its liabilities, increases the liabilities of the other party, excludes the rights of the other party, the terms shall be invalid. In accordance with article fifty-second, article fifty-third of the provisions of this case like, is certainly invalid clause, even if the parties agree, don't make it work. The format of the terms from the defendant shall bear guarantee liability, aggravate the plaintiff's responsibility, the terms shall be invalid.

3The defendant is not the necessary, prompt duty

   "Interpretation of the Supreme People's Court on certain issues concerning the application of the people's Republic of China Contract Law '' '(two)"
    The sixth party who provides format contract the terms of the format of the exclusion or restriction of its responsibility for the content, arouse the attention of the opposite side of the text, symbols, fonts and other special logo in the contract is used to, and in accordance with the requirements of the other provisions of the format are explained, the people's court shall comply with the said that thirty-ninth of the contract law"Take reasonable way".

    The party that provides the standard clauses have been reasonably prompt and explanation obligationThe burden of proof.

   Article ninth: provide the format of the terms of the party in breach of the contract law in thirty-ninth of the first paragraph of prompting and obligation, led to the other paid no attention to exempt or limit his liability clause, the other party for the revocation of the terms of the format, the people's court shall support.

Without doubtThe defendant provided, "guarantee contract" is a contract law thirty-ninth stipulated"Format clauses"The defendant shall, in accordance with the above provisions,Yes"The exclusion or restriction of its responsibility for the contents of", shall take reasonable way to remind the attention.From this case,The defendant did not fulfill the obligations,The defendant the plaintiff directly on the last page of the guarantee contracts"Party B"Signature, because the defendant's misleading, the plaintiff has neglected to guaranteeContract reviewNot see written guarantee contract, in the case that a signature, which themselves contract obligations not fair.Therefore,The plaintiff has the right to request the withdrawal of the above terms and conditions apply.

4,<Contract of guarantee>Agreed liquidated damages are too high
The Supreme People's Court on certain issues in the application of the "PRC Contract Law" interpretation (two)Article second paragraph twenty-ninth  The parties of gold more than thirty percent default loss, can generally be identified as the contract law, the provisions of the second paragraph of the 114th"Excessively higher than the losses caused by".
The defendant to provide the format of the contract<Contract of guarantee>Article Sixth4,C"Party B shall be in the third repayment within ten days following the date of settlement bank all principal, interest and related costs, while B for the breach of contract guarantee payment of the total amount to Party A30%The liquidated damages"AndD"Party B shall bear the total purchase a car in this contract section20%Compensation and the total amount of this guarantee30%The liquidated damages."A defendant does not assume any responsibility for security in the case,Without any loss in case of,The plaintiffs had to bank loans repaid, still requires the plaintiff to bear the responsibility,Liquidated damages is obviously too high.
5, right between the original defendant obligations in unfair,Shall be revoked.
From the above analysis we can see,One side,Defendant Just take the plaintiff to provide material guarantee--Car mortgage value is insufficient to offset the bank debt to bear additional security liability, and requires the plaintiff to bear the total loans30%Or50%Liability for breach of contract,The defendant with less cost to obtain greater benefits, take very few obligations and get more rights,The plaintiff will assume more obligations and enjoy the few rights or in the economic interests will suffer a great loss.The rights and obligations between the unfair.
To sum up,The defendant provided<Contract of guarantee>The terms of the format from the defendant shall bear guarantee liability, aggravate the plaintiff's responsibility, unfair,It shall be revoked.
(three), the plaintiff has repaid the bank loan, the defendant still buckle car does not have.
The defendant in2010Years3Month25Will the car be seized, caused the alert, the plaintiff that the defendant is set traps in the contract, the plaintiff has to2010Years5Month28Japan will have to repay the loan and bear all the costs for banks. The plaintiff argues that even with the guarantee contract"Until the party full pay off the loan and other expenses or increase in immovable mortgage or pledge his full"The agreement, the plaintiff to pay off bank loans and related costs, the accused should be unconditional to buckle the return of the vehicle, but today, the defendant still seized the vehicle does not have.

(four), the defendant should compensate the plaintiff loss.
The purchase of vehicles is for the purpose of consumption,The defendant illegal deduction of behavior,So the plaintiff cannot normal car,Forced to market price to rent a car to use,For the car in the vehicle is detained during the expenses,The defendant shall bear all the liabilities for compensation.On the other hand,Because the illegal contract obligation,The vehicle to be seized,The plaintiff was forced to bank loans early return,The accused should be unconditional refund guarantee fee to the plaintiff4000Element and margin1000Element.
To sum up,The defendant seized the vehicle without any basis,The contract unconscionability,The plaintiff has repaid the bank loan, the defendant still buckle car does not have, and causes losses to the plaintiff, the defendant shall assume full responsibility.
Three, the opinion of the court
The court thought,XXGuarantee Corporation and the plaintiff ZhangXXThe signing of the "personal car loan guarantee contract", ZhangXXAndXXGuarantee corporation are not mutual obligation, namely ZhangXXEven if the violation of the traffic between the bankA contract for loan of moneyAgreement, is bound to lead toXXBank of communications Guarantee Corporation to assume responsibility, but because the Bank of communications, the Guarantee corporation,ZhangXXThe three party to form three independent contract relationship,XXGuarantee Corporation in this case has no right toXXThe exercise of the unsafe right of DefenseThat is, no claim to suspend performanceContract of guaranteeZhang, or requestXXProvide a guarantee. Although"Personal car loan guarantee contract" agreed"If Party B of this contract Article Sixth3Xiang Jidi4Case study of the specified amount, Party A requires collecting tube and disposal of vehicles, Party B shall cooperate with Party A shall hand over the vehicle, handle the transfer formalities"Based on the picture, butXXOwnership of the vehicle, possession, use, disposal income, the ownership contains rights should be established on both sides withCreditor debtor relationshipAnd the authorities in the legal procedures for transfer,In addition, no person shall all rights violations against the will of the parties. Yi Yanzhi,Even though ZhangXXYesXXGuarantee Corporation responsible for the liability for breach of contract,In the pictureXXRefuse vehicle delivery, XXGuarantee corporation still should be based on justice ZhangXXDelivery or disposal vehicle,Without the right against ZhangXXWillingness to seize the vehicle.SoXXGuarantee Corporation seized car behavior is clearly contrary to the law,Should Xiang ZhangXXThe return.In addition,Guarantee Corporation illegally seized ZhangXXVehicle,Is bound to create aXXTraffic loss,But ZhangXXThat loss is higher than that of normal traffic loss,The appropriate30Element/Day,From the2010Years3Month25The calculation to the verdict date date.
Four, treatment results
The judgment of the court1,XXGuarantee corporation also car;2,XXThe Guarantee Corporation in accordance with the30Element/Days to ZhangXXDuring the deduction of loss compensation.