Case synopsisFebruary 21, 2008: a bank and Paper Co signed A, guarantee a loan contract (hereinafter referred to as the contract 1), agreed to by the A Paper Co to bank loan 6000000 yuan, provided by the B trade company joint liability guarantee, loan period is one year. Borrowing expires, A Paper Co to repay the debt, the banks and Paper Co and A, B trade company signed a deferred repayment agreement, the repayment date postponed to July 20, 2009. In July 11, 2009, bank and Paper Co signed A guarantee a loan contract (hereinafter referred to as the contract 2), agreed by the bank issued 6000000 yuan of loans to Paper Co A, the use of the loans for the purchase of raw materials, provided by the B trading company, C color printing company joint liability guarantee. On the same day, A Paper Co to transfer cheque to the bank to return the contract under Item 1 of the loan interest 6030000 yuan. 2010 year in July 11th, after loan expires, the corresponding bank loan Paper Co outstanding, then taken to court, ask the Paper Co to repay the loan, B trading company, C color printing company shall bear joint and several liability; while the B trading company, C color printing company to contract 2 the loan to loan for, should not bear the responsibility.

Question 1 what is the loan to loan? On the legal nature of the loan owing on the loan? How to determine the loan to loan? In the loan to loan guarantor's guarantee responsibility?

Reference answerSo-called.Loan to loan", is that after the expiry of the loan contract, the lender and the borrower through consensus, to sign a new loan contract, the borrower with a new loan contract expired borrow return the money owed money loan contract.

Loan to loan atNatureA settlement of debt, the borrower with a loan contract to borrow money to return before a contract for loan of money borrowed money. Involving two loan contracts in the process, before and after the two loan contracts are independent of each other, there is no master-slave relations, legal relations are independent. Before and after the two loan contracts difference is not use of the loan, loan contract before a loan can be used for any legitimate purposes, and a contract for loan of money used to pay off a loan before the loan contract the lender of money. But the essence, the loan is actually a contract extension, because the two sides signed borrowing new contract formed by the debtor creditor relationship is not a new law, but an extension on the basis of the original legal relationship has matured debts. Both lenders and borrowers to take the real purpose of loan is to make the old loan can be extended, but did not take the form of extension. In accordance with the relevant legal provisions, such loan is prohibited, but the extension is legal. Why not take the borrower extension this legal form to take loan to loan the prohibited form? The reason is to prevent the occurrence of bad loans. Then, in the loan contract is effective or not? The Supreme Court has made "about illegal lending, but by the competent department of punishment, but is generally not recognized the contract invalid" judicial interpretation. In judicial practice, the general is not that the contract is null and void, the basis is: take the loan extension is the true meaning of this form of debit and credit, its purpose is legal, and not because of the form of illegal, violates the general prohibition provisions of the contract is null and void.

Loan to loan belongs to the civil behavior. Thus,Identification ofFinancial institutions and borrowers are on loan to loan, the borrower should not only identify objectively there will be new loans also old loan behavior, but should also be identified, between financial institutions and borrowers have subjective to common meaning representation or meaning contact loan. They should be indispensable. In judicial practice, the borrower to new loans also old loan behavior is more obvious, verify it is also relatively simple, usually not much controversy. But to prove that between financial institutions and borrowers in the loan of the common meaning representation, but it is not easy. Because, meaning in both not shown in an explicit way circumstances, is difficult to prove. If the financial institution and the borrower in the loan contract is a loan to loan, the common meaning representation be completely bared there and then, check up of course no problem. But this in the contract with the loan owing on the loan situation though, but rarely, therefore, in the absence of evidence to prove the existence of representing a common meaning, method allows the use of presumption. According to the summary from practice experience, to the following specific cases of financial institutions and borrowers in the loan of the common meaning representation: one is never lend money, just replace the loan certificate, two is the borrower to return the loan in a short period of time (such as morning lending, afternoon return), three is a new loan it is the sum of the old loan principal and interest, the borrower in a relatively short period of time to repay the loan. Between financial institutions and borrowers to the common meaning representation is a necessary condition for loan, loan to loan was so simple, to avoid the following two conditions as a loan to loan process: one is the borrower unilaterally decided to loan repayment to the old loan of financial institutions, two single decided to deduct the loan owing on the loan. If you can't find out between financial institutions and borrowers in common meaning owing on the loan, and can not be constructive, not as a loan to loan processing.

The loan of the suretyship liability of the surety can distinguish the following respectively: (a) in the old loans and new loans have a guarantor, and the guarantor for the same people, the guarantor shall undertake suretyship liability principle. (two) no warranty or old loans with new loans in the old loan guarantee is not the same person case, the new loan guarantee if you don't know the principal contract both parties engage in loan to loan, should be in accordance with the "security law" thirtieth article first, parties of the principal contract collusion, cheating the guarantor provides guarantee, the guarantor shall not bear civil liability. That is exempt from the suretyship liability of the surety. (three) if the main contract is a loan, or financial institutions, the debtor can provide evidence to prove that people know the loan to loan the fact also provides the guarantee, guarantee people still have to bear the liability of guarantee.

Based on the above analysis, we can know that, in this case, the surety shall be for both borrowers and loan to loan behavior whether know or know, become it should bear the responsibility according to the.

"PRC security law" provisions of article first of the purpose of legislation of China's Security Law: "promoting the accommodation of funds and the circulation of commodities, ensure the realization of creditor's rights, the development of the socialist market economy." It is not difficult to see, is through the promotion of the intermediation of funds and the circulation of commodities, which play a "defect" claims on the nature of the role.
There are several legal relations between the 2 in this case, what are they?

In this case there are four legal relations, respectively is: between A company and bank loan contracts, guarantee contract relationship between B company and the bank loan contract, the new relationship between A company and the bank guarantee, contract relationship between B company, C company and the bank.

3 in the case of B company, C company needs to undertake suretyship liability? What is the legal basis?

Reference answer: in determining loan belongs to the loan to loan conditions, the main contract, loan contract is still valid, the surety's liability depends mainly on the following conditions: (1) whether the surety in the new - and old loans were the guarantor, if there is a guarantor, cannot be exempted from responsibility; (2) the guarantor shall the loan in the fact that it knows or ought to know, if the guarantor for the loan to loan fact knows or ought to know, the guarantor is not exempted from liability. In this case B company shall guarantee in the contract and the contract for 1 2, according to the provisions of the Supreme People's Court on certain issues in the application of the "PRC security law" interpretation of article thirty-ninth: "the main parties to the contract agreement with the new loan to repay the old borrowing, except when he knows or ought to know, guarantee shall not bear civil liability. New and old loans loan department of the same guarantor, does not apply to the provisions of the preceding paragraph."

B company is the need to undertake suretyship liability; while the C company should bear the responsibility, is to see whether the A company to know the borrower loan fact, if not, then C does not need to assume the guarantee liability, otherwise need to bear the liability of guarantee.

Question 4 you that people are what advice to the lender,?

(a) the lender suggestions

The Supreme People's court to modify relevant explanation, in order to avoid unnecessary litigation, specific suggestions related to bank credit operations, except in the loan contract clearly borrowing borrow new also old, also should ensure that the contract clearly, or in the guarantee to increase the clause in the contract: "the guarantor have read the guarantee contract secured loan contract, agreed in the loan contract. The debtor under the obligation to provide joint liability guarantee."

(two) the level of the proposed

As a guarantor shall fully pay attention to legal risks of their own behavior, in the corresponding legal means of investigation and study is necessary, to protect their legitimate rights and interests:

1, information on the principal debtor and its ability to perform investigation, research;

2, the main guarantee of debt make the necessary investigations, research, read the contract carefully, pay special attention to reading the obligor's duty clause;

3, to take the necessary preventive measures, such as the counter guarantee etc..

Conclusion

As one of the secured creditor guarantee way, to promote the transaction security, promote the development of socialist market economy has a positive and far-reaching significance, in the loan to loan a loan contract guarantee, to treat them differently, not only to protect does not know that the legitimate interests of the people, also can't let it shall bear the liability of guarantee guarantee to "do not know" as the interface to escape responsibility to ensure that, to the detriment of the transaction order, endanger the financial security.