Bank of Hongkong Corp. v. Hongye company guarantee contract name

                                  The Supreme People's Court (2002) No. sixth people four
The appellant (defendant in the original instance): Shantou Hongye (Group) Limited by Share Ltd. Domicile: Guangdong Province Shantou City Road 25, Hongye Building 6 floor.
Legal representative: GUI is bright, chairman of the company.
Attorney: Shen Xiaowei, lawyer of Beijing dingming.
Appellee (the plaintiff): Chinese Bank (Hongkong) limited. Place of residence: Hongkong Special Administrative Region of the Central Garden Road No. 14 Building of Bank of China Tower.
Representative: and the North Canton, the president of the company.
Attorney: Zhang Shouzhi, lawyer of Beijing Jin du.
Attorney: money Yaozhi, Beijing Jin Du lawyer.
Appellee (defendant in the original instance): new Shantou Special Economic Zone Development Co. ltd.. Shantou City, Guangdong Province, place of residence: Hengshan Road Jinlong building 20 floor.
Legal representative: Lin Zhaoxu, chairman of the company.
The appellant Shantou Hongye (Group) Limited by Share Ltd (hereinafter referred to as the property company) with the appellee China Bank (Hongkong) Limited (hereinafter referred to as the BOC Hongkong company), the new Shantou Special Economic Zone Development Co. Ltd. (hereinafter referred to as the new company) guarantee contract dispute case, the higher people's Court of Guangdong Province with (2000) Guangdong method by the early two No. fifth civil judgment, and appealed to the hospital. This court legally formed by judge Wang Men to serve as the presiding judge, acting judge Ren Xuefeng, Chen Jizhong participate in a collegial panel, held a public hearing of the case. The new company without justifiable reasons not appear involved. Now the trial has been closed.
The trial court found: November 28, 1997, the new company to Guohua bank "is not irrevocable guarantee contract": because your bank to Daly Fung Group Company Limited (hereinafter referred to as the borrower) have been made or agreed to make loans, overdrafts or other bank credit, the company / unit (hereinafter referred to as guarantor) is issued in your favor unconditional and can't cancel the deed of guarantee, guarantee responsibility as follows: 1 the borrower loan guarantee to change in accordance with the relevant agreement or other agreement, including any relevant content (hereinafter referred to as the agreement) provisions, pay off the loan on time, the gold interest, charges and other payables (hereinafter referred to as money). 2 if the borrower breaches any provisions of the agreement, or delays in repayment of arrears, the guarantor in the received your relevant written notice within seven days in accordance with the agreement of the money immediately repay borrowers of all debts, and the payment by telegraphic transfer to the bank account designated by the. The guarantor accept your written proof of the borrower pursuant to owe the bank's accurate number, no objection. 3 this contract of guarantee is the guarantee to repay you for the borrower the agreement at any time under any loan, the bank's grant money overdrafts or other bank credit funds and ultimately owed, and continuity effect, until the borrower owed all arrears repayment for your full stop. However, the guarantor responsibility for this deed of guarantee will not exceed HK $313000000, and the interest and your bank for collection of arrears by the legal fees and other fees. 4 the guarantor to ensure all accounts payable in the guarantee contract under the terms, will be fully paid, any offset, deduction or withholding or any properties of the money will not. If the law or other reasons, the guarantor to the accounts payable withheld or deduct any tax or other payments, the guarantor guarantees to pay an additional amount, to ensure your paid up and the amount of withholding or deduction of receivable amount the same. 5 you may be any of the provisions of this contract to exist on any account adduction or suspense account. 6 no agreement or any portion of it, or can be implemented, the guarantee contract is the continuation, not irrevocable and unconditional, until the borrower to repay all the debt until completely. 7 this Contract constitute direct responsibility, the guarantor of you not because: (a) the borrower or guarantor or your personnel changes, reorganization, merger, reorganization, bankruptcy, liquidation, renamed; (two) the borrower beyond borrowing power; (three) any dispute, between loan and guarantee or other security the dispute or contract; (four) the borrower or guarantor and creditor debt restructuring; (five) the borrower in the liability under the matter in any reason is invalid or cannot be performed or execution; (six) changes to the agreement and / loans, overdrafts or other bank credit content affected or cause its failure. Does your bank will guarantee as the principal debtor, to pay the chase. 8 this contract of guarantee liability without your permission to repay any grace and borrower debt time limit extension of grace, or any other arrangement or compromise or your delaying exercise have in the agreement and the affected. 9 this contract with your current or future held by the borrower or any other person with your bank as collateral the borrower of the outstanding amount of the collateral or collateral free, its effect is not affected, nor any other contract of guarantee or collateral or collateral effects. 10 you don't need to take any action against the borrower or any other guarantor or any collateral or collateral, can guarantee liability claims on your bank to this guarantee contract. 11 in all its arrears fully repaid or without your written consent, the consent of the guarantor not exercise made from the borrower the right of subrogation, offset or counterclaim power, power will not exercise any of the assets of the guarantor may exercise. About 12 of the guarantor of you to this guarantee contract responsibility, your bank to guarantee people in your bank account and any deposit at the bank in any securities, stocks or other items can be implemented to offset the right mortgage and lien, without prior notice. 13 the guarantor shall confirm, signed the contract of guarantee and the performance is a business behavior, the guarantor is not based on the guarantor is member institutions or departments of the state or government to the grounds of jurisdiction, legal offset, or the guarantor of execution property or other legal claim immunity, and the guarantor shall not be based on the sovereignty reason or other reasons, request exemption or claim the right to waive any legal action or proceedings, or exempt any attachment jurisdiction to the guarantor asset or a guaranteed contract provisions under the liability for execution of the judgment, the guarantor shall not irrevocably abandoning this immunity and on. 14 all by your bank to guarantee people notice, if mailed to the address or the guarantor notice address of your bank, will be in five days as a guarantor received, regardless of whether the letter to you afterwards. Notice if the fax is sent, received, as a guarantor. 15 the Guarantor hereby guarantee and the guarantor declaration, ability is legally to sign the contract of guarantee and fulfill its responsibility, and have been properly authorized and has completed all the formalities and has obtained the approval of the contract of guarantee all government required or other departments / units and agree. 16 the Guarantor hereby guarantee Guarantor agrees to take all actions required or signed file all required to ensure that the guarantee contract in legal and binding at any time. More than 17 signed a guarantee if the guarantee contract, responsibility guarantor will be the common and individual responsibility, you can release or not held responsible for any Guarantor without affecting your bank to this contract to any other rights of the guarantor. The legal representative of the 18 guarantor, heirs, agents and taken over by the guarantee contract clauses per capita restraint and responsibility of the guarantee contract. 19 the borrower to repay the debt, you have the right to retain the guarantee contract six months to cancel or return the guarantor, such as the borrower during the bankruptcy liquidation / behavior, is your bank can continue to retain this guarantee contract and related mortgage until you notice. 20 Hongkong law as the applicable law, the contract of guarantee at the same time, the Hongkong courts have non exclusive jurisdiction of the guarantee contract under any dispute. The letter signed signed a witness: Lin Jingqian (Shantou Chinese bank staff), and covered with a new company seal, signed the new company deputy general manager Lin Zhaoxu name.
In April 17, 1998, Acer Ltd. Guohua bank "is not irrevocable guarantee contract": because your bank to Daly Fung Group (hereinafter referred to as the borrower) have been made or agreed to make loans, overdrafts or other bank credit, the company / unit (hereinafter referred to as the guarantor) is issued to you as the beneficiary of the unconditional and cannot be revoked contract of guarantee, guarantee obligations are as follows: 1 the guarantor to ensure that changes borrowers in accordance with the relevant loan agreement or other agreement, including any relevant content (hereinafter referred to as the agreement) provisions, pay off the loan principal, interest, fees and other payables (hereinafter referred to as money). 2 if the borrower breaches any provisions of the agreement, or delays in repayment of arrears, the guarantor of all arrears in received your relevant written notice within seven days according to the repayment agreement immediately money owed by the borrower, and the payment by telegraphic transfer to the bank account designated by the. The guarantor accept your written proof of the borrower pursuant to owe the bank's accurate number, no objection. 3 this contract of guarantee is the guarantee to repay you for the borrower the agreement at any time under any loan, the bank's grant money overdrafts or other bank credit funds and ultimately owed, and continuity effect, until the borrower owed all arrears repayment for your full stop. However, the guarantor responsibility for this deed of guarantee will not exceed HK $313000000, and the interest and your bank for collection of arrears by the legal fees and other fees. 4 the guarantor to ensure all accounts payable in the guarantee contract under the terms, will be fully paid, any offset, deduction or withholding or any properties of the money will not. If the law or other reasons, the guarantor to the accounts payable withheld or deduct any tax or other payments, the guarantor guarantees to pay an additional amount, to ensure your paid up and the amount of withholding or deduction of receivable amount the same. 5 you may be any of the provisions of this contract to exist on any account adduction or suspense account. 6 no agreement or any portion of it, or can be implemented, the guarantee contract is the continuation, not irrevocable and unconditional, until the borrower to repay all the debt until completely. 7 this Contract constitute direct responsibility, the guarantor of you not because: (a) the borrower or guarantor or your personnel changes, reorganization, merger, reorganization, bankruptcy, liquidation, renamed; (two) the borrower beyond borrowing power; (three) any dispute, between loan and guarantee or other security the dispute or contract; (four) the borrower or guarantor and creditor debt restructuring; (five) the borrower in the liability under the matter in any reason is invalid or cannot be performed or execution; (six) changes to the agreement and / loans, overdrafts or other bank credit content affected or cause its failure. Does your bank will guarantee as the principal debtor, to pay the chase. 8 this contract of guarantee liability without your permission to repay any grace and borrower debt time limit extension of grace, or any other arrangement or compromise or your delaying exercise have in the agreement and the affected. 9 this contract with your current or future held by the borrower or any other person with your bank as collateral the borrower of the outstanding amount of the collateral or collateral free, its effect is not affected, nor any other contract of guarantee or collateral or collateral effects. 10 you don't need to take any action against the borrower or any other guarantor or any collateral or collateral, can guarantee liability claims on your bank to this guarantee contract. 11 in all its arrears fully repaid or without your written consent, the consent of the guarantor not exercise made from the borrower the right of subrogation, offset or counterclaim power, power will not exercise any of the assets of the guarantor may exercise. About 12 of the guarantor of you to this guarantee contract responsibility, your bank to guarantee people in your bank account and any deposit at the bank in any securities, stocks or other items can be implemented to offset the right mortgage and lien, without prior notice. 13 the guarantor shall confirm, signed the contract of guarantee and the performance is a business behavior, the guarantor is not based on the guarantor is member institutions or departments of the state or government to the grounds of jurisdiction, legal offset, or the guarantor of execution property or other legal claim immunity, and the guarantor shall not be based on the sovereignty reason or other reasons, request exemption or claim the right to waive any legal action or proceedings, or exempt any attachment jurisdiction to the guarantor asset or a guaranteed contract provisions under the liability for execution of the judgment, the guarantor shall not irrevocably abandoning this immunity and on. 14 all by your bank to guarantee people notice, if mailed to the address or the guarantor notice address of your bank, will be in five days as a guarantor received, regardless of whether the letter to you afterwards. Notice if the fax is sent, received, as a guarantor. Hold this guarantee and the guarantor statement 15, the guarantor has the legal ability to sign this contract and fulfill its responsibility, and have been properly authorized and has completed all the formalities and has obtained the approval of the contract of guarantee all government required or other departments / units and agree. 16 the Guarantor hereby guarantee Guarantor agrees to take all actions required or signed file all required to ensure that the guarantee contract in legal and binding at any time. More than 17 signed a guarantee if the guarantee contract, responsibility guarantor will be the common and individual responsibility, you can release or not held responsible for any Guarantor without affecting your bank to this contract to any other rights of the guarantor. The legal representative of the 18 guarantor, heirs, agents and taken over by the guarantee contract clauses per capita restraint and responsibility of the guarantee contract. 19 the borrower to repay the debt, you have the right to retain the guarantee contract six months to cancel or return the guarantor, such as the borrower during the bankruptcy liquidation / behavior, is your bank can continue to retain this guarantee contract and related mortgage until you notice. 20 Hongkong law as the applicable law, the contract of guarantee at the same time, the Hongkong courts have non exclusive jurisdiction of the guarantee contract under any dispute. The letter signed signed with the name of witness Lin Jingqian, the upper cover is Hongye company seal and the legal representative of Cai Chengtong's signet.
In September 2, 1998, Chinese banks issued a number of P / 113 / 98HKL "letters" general access to Daly Fung Group, as follows:
Distribution of 1 credit
1.1 credit through the following method: (1) the overdraft amount not exceeding HK $2000000. Overdraft interest rate for the bank from time to time by the Hong Kong dollar prime rate [BLR) laid down by the Hongkong interbank overnight interest rate plus 1%, whichever is higher (whether in judgment before or after), currently the overdraft interest rate is 11%, but the rate of interest may from time to time floating; (2) overdraft limit for no more than HK $26000000. Overdraft interest rate for the bank from time to time by the Hong Kong dollar prime rate [BLR] or the Bank of Hongkong for the interbank overnight rate plus 2%, whichever is higher (whether in judgment before or after), currently the overdraft interest rate is 12%, but the interest rate is not floating; (3) to open letters of credit and documentary credits entrance, not more than HK $160000000 (including days to 120 days trust delivery, in me for not less than HK $72000000 export credit for no more than HK $135000000 trust delivery); (4) the export credit guarantee amount not under negotiation more than HK $120000000; (5) packing loan amount does not exceed HK $40000000 Yuan He / deposit in our bank credit for export value 70%, both choose less and not more than 90 days or the expiry date, the earlier the better; (6) the main letter of credit to open the letter of credit and import bill advance the amount, not exceeding HK $40000000, the loan amount is only applicable to "direct shipment" situation; (7) the mortgage loan of HK $30950000, conditions refer to our letter dated January 7, 1997 file No. 0039 / C / 97HKL; (8) the mortgage loan Payment of HK $3570000, we give conditions refer to the date October 11, 1996 file No. 2114 / C / 96HKL correspondence.
1.2 the bank reserves the absolute discretion to accept or reject you use any of these credit application.
1.3 when the bank on credit payment or incur liability, the credit will automatically be viewed by you or by bank lending and extraction.
1.4 without affecting the terms below 3, the bank reserves at any time re allocation of various bank credit in our sole and absolute discretion rights.
2 interest rate and calculation method.
2.1 credit under lend / extract all the payments, the bank will charge interest charges, commissions and / other this letter designated by the bank from time to time, or by any published any specified rate table in the standard rate (whether on or before the award) toll.
Interest will be calculated based on the actual number of days of 2.2 Hong Kong dollar loans, calculated to 365 days a year, dollar loans calculated to 360 days a year, others according to market used to calculate.
2.3 all the interest accrued to date to the designated according to the market used to pay, if not according to the provisions of the payment, the interest will be transformed into principal and interest bearing.
2.4 we are entitled to any more than the agreed amount or fails to pay the amount of excess / overdue interest charge. In addition to the bank and you do not or at any time otherwise agreed, payment of interest on the amount, the interest rate is the most favorable cost of funds by the bank from time to time plus 10%, whichever is higher (whether before or after the judgment), the calculation of interest from the due date until the actual payment of arrears, all so far, reference however, the calculation on prior notice in case of changes in the overdue interest.
3 credit expiration. We will regularly to review your credit. When the bank issued credit to your notice of termination letter, all credit will terminate immediately. The bank is to provide credit issued the notice of termination letter of credit until now. Although this letter as otherwise provided, the bank reserves the absolute discretion, unique increase at any time, reduce and cancel the credit or any part thereof, and the change in the bank will inform you on the same day with immediate effect.
4 repayment.
4.1 we are asking you to immediately repay all the credit and interest accrued in the above rights.
4.2 you pay the money to the bank to credit all payments shall be paid or incurred by the bank's money or debt as the basis, and subject to immediate repayment funds available, there is no offset or counterclaim and not because of any and all present or future taxes, duties or other charges and deducted or to clasp.
4.3 if any money is not in the correct currency payment, the bank may enjoy absolute discretion to determine the amount of the currency into the correct currency to the spot exchange rate the bank can not be overturned to set, to repay your debt to the money owed and responsibility unit.
4.4 in your payment or any time thereafter, to relieve you of any part of the debt (the part of the bank may consider appropriate and decide), the bank has the sole and absolute rights transfer payment to the bank or the Bank of your possession or control of any money. Any such transfer will override any of your claims transfer.
5: you have to charge fees to accept letter to pay HK $5000 (the fee for any situation will not be refunded) and thereafter annually in credit extension, other amounts paid 3000 yuan or the bank agreed with you.
6 collateral and file: when we received the following documents, and other documents required by the bank from time to time, and to determine whether the file format and content are in line with the will to provide credit to you: (1) by Chen Shaoying, Fang Runping and Lin Zhao Xutuo to guarantee executed deed, the warranty deed is about to pay no less than HK $principal of 396520000 yuan and accrued interest and overdue interest and the deed of guarantee in the other costs and expenses; (2) a property company and the new company duly guarantee executed deed, the deed is about to pay no less than HK $313000000 yuan of principal and accrued interest and overdue interest and other charges stated in the deed of guarantee money, together with the relevant resolutions of the board of directors. (3) a duly executed this behavior to offset the beneficiary and deposit mortgages, mortgage indemnity, deposit and offset the deed and deposit the deed of assignment, and with no less than HK $49000000 of deposits as the first fixed mortgage, together with the relevant board resolution (if applicable); (4) the following properties legal charge / equitable mortgage, property ownership by the lawyer of Hongkong verification: A. 1 Harbour Road, convention and Exhibition Center office building 18 building 3 room; room 6 building D 12 third B. Kowloon Whampoa　 garden. 1. Property shall be accepted in a bank's insurance companies to buy fire insurance, the insured amount for credit amount or other bank may consider appropriate amount; II. The policy should transfer the bank, together with the premium receipt bank Shouzhi; and 3. The bank has the right (but not the obligation) to buy the insurance on behalf of you all, insurance fees, valuation fees (if any) and expenses shall be borne by you, and we have the right to mention to you without the case from your account after deducting the cost of.
7 not to overthrow the accounts: any credit related accounts statements by the bank, if any one of the staff to sign a certificate for the right, is your debt to the final proof, and binding on you (have obvious mistakes except).
8 further agreed: all about this letter to sign and perform the necessary resolution, company by shareholders, directors and authorized staff. According to the law of Hongkong, your registration law, your articles of association memorandum and formally adopted by the. This letter to you constitute legal, valid and binding obligation.
9 give up and cumulative Rights: the delayed exercise or no exercise any right, power or privilege of this letter, remedy, will not damage or be construed as a waiver of such rights, powers, privileges or remedies. A single or partial exercise of any such rights, powers, privileges or remedies does not preclude any further exercise of the right bank power, privilege, or remedial method. Right, this letter gives the powers, privileges or remedies is cumulative, does not exclude any rights, the law of power, privilege or remedy.
Authorized 10 debit: the bank has the right at any time and from time to time (in the case of without notice to you) from any account of your net of all or any interest, fee, fee, commission, expenses, expenses and other you on this credit expires payable. The money will be considered by you from the account duly extracted or overdraft.
11 charges: all expenses will be borne by you to full compensation for reference.
12 laws: the law of the Hongkong special administrative region.
By Chen Jianshen in the chairman of the meeting, director Liu Quanhui sign in sign, and the new company directors Chen Jianshen, Chen Shaona, Chen Jianhong, Liu Quanhui, Chen Shubo, Qiu Xuewan, Chen Yuhua, signed and stamped with the official seal of the new company "new company board of directors" records: the new board of directors of the company in November 28, 1997 in Shantou City, Hengshan Road Jinlong building 20 Lou held. Notice to all directors of the company received the convening of the meeting, issued a notice of meeting with the articles of association of the company; the convening of the meeting have been in line with the requirements of the notice. According to the articles of association of the company, all directors attended the meeting. Meeting presided over by the chairman of the meeting record, the following: (a) the meeting heard a Daly Fung Group (borrowers) to the China State Bank (lender) take no less than HK $395830000 in bank credit (the credit).; (two) should the borrower, the borrower will repay as a guarantee of the credit conditions, the company shall sign a "not revocable guarantee contract", to the borrower owed all money lender borrower from time to time, only to "can't cancel the highest responsibility guarantee contract" under the HK $313000000 and the interest and related costs. (three) the company's Zhang Chengjun allowed the company to the transaction; (four) if any of the directors and shareholders have a direct or indirect interest and the transaction details, and nature of the Director / shareholders to the board of directors have to declare and vindicate the benefit relationship. All the directors of the company and shareholders in the related transactions have direct or indirect relations, the board of directors has sufficient understanding and confirmation. (five) to seriously study the above issues and relevant documents of the board of directors. After careful discussion, all attended the Board unanimously agreed to the following resolution:
In 1 the company agreed to provide $3 million Hong Kong dollars and Sanyiyi interest and related costs of the guarantee to the China State Bank, guarantee the Dalifou group to perform its loan agreement with any Chinese bank;
In 2 the company has been reviewed, accept and agree that "not revocable guarantee contract" all content;
In 3 the company authorized Lin Zhaoxu solely to represent the company signed and stamped with official seal on the "not revocable guarantee contract" and to represent the company to make all actions relating to the contract.
In 4 the company fully understand the lenders in the premise of guarantee issued by the company, will provide or continue to provide the credit to borrowers, but also understand the company shall comply with the provisions of the law Chinese guarantee, the company will be responsible for handling the formalities, and bear all the responsibility.
The chairman of the meeting signed: Chen Jianshen, Liu Quanhui, Chen Shaona, signed by the chairman of the board: Chen Jianhong, Chen Shubo, Qiu Xuewan, Chen Yuhua.
Hongye company board of directors held in Guangdong Province Shantou City Tian Shan Lu Hongye Building on April 17, 1998, meeting records: Notice to all directors of the company received the convening of the meeting, issued a notice of meeting with the articles of association of the company; the convening of the meeting have to conform to the requirements of notice. According to the articles of association of the company, all directors attended the meeting. The following is the record of the meeting: (a) the meeting heard a Daly Fung Group (hereinafter referred to as the borrower) to the China State Bank (lender) for HK $395870000 (the bank credit). (two) should the borrower, the borrower will repay as a guarantee of the credit conditions, the company shall provide 3l300 million Hong Kong dollars and interest and related costs of security to the lender. (three) the company's Zhang Chengjun allowed the company of the above transactions. (four) if any of the directors and shareholders have a direct or indirect interest and the transaction details, and nature of the Director / shareholders to the board of directors have to declare and vindicate the benefit relationship. There are direct or indirect relations of all the directors of the company and shareholders and related transactions, the board has fully understanding and confirmation. (five) to seriously study the above issues and relevant documents of the board of directors, after serious discussion, all attended the Board unanimously agreed to the following resolution:
In 1 the company agreed to provide $313000000 and costs related to guarantee to the China State Bank, guarantee the Daly Fung Group Limited company to fulfill its loan agreement with any Chinese bank;
In 2 the company has been reviewed, accept and agree that "not revocable guarantee contract" all content;
In 3 the company authorized Cai Chengtong solely to represent the company signed and stamped with official seal on the "not revocable contract".
In 4 the company fully understand the lenders in the premise of guarantee issued by the company, will provide or continue to provide the credit to borrowers, but also understand the company issued by the guarantee must apply for registration or filing procedures for approval in accordance with the provisions of the law, China (including but not limited to listing and foreign exchange management), the company will be responsible for the procedures. If not for the China legal procedures and led to the security contract shall be invalid, the company will assume full responsibility for all damages the lender, now or in the future to continue to provide the credit from.
In January 3, 2000, the high court of the Hongkong Special Administrative Region to the 1999 No. 883rd company liquidations confirmed China State Bank of Dalifou Group Limited company's total $44082157.07, $25771093.15 and the interest of HK $1443383.13, $708517.61. In May 22nd the same year, Daly Fung Group Limited company's liquidator at Ernst & Young Hongkong lawyer Liao Yaoqiang to file NC / PY / DC / St / 0005-LI0953 function, to confirm the claims of Guohua bank on Daly Fung Group Co. Ltd as the principal of HK $44082157.07, $25771093.15, the interest of HK $1443383.13, $708517.61; property company, the new company is the domestic loan of guarantor, the guarantor responsibility on the individual guarantee contract shall not exceed HK $313000000.
Another survey, in November 17, 1999, Hongkong Gu Kairen law firm respectively to the property company, the new company issued "on the Daly Fung Group (the borrower) is not Guohua bank debt issues" letter says: I by China State Bank commissioned by the borrower to pay off the debts, a letter to your company. According to a date for November 28, 1997 may not revoke the contract of guarantee (Dan Baoshu), your company as the guarantor to our client, guarantee the repayment of the borrower owed my client's debt. According to the information provided by the customer, the borrower fails to repay its debts owed me by the customer, up to November 11, 1999, the borrower still owed the debt our client is HK $37353037.48 and $26122045.32 in debt, details, please refer to the attached table of this letter. I according to my client's instructions, all debts hereby request you immediate repayment of the borrower and together with any interest and I will send this letter to a lawyer fee (HK $2000). As to the matters concerned to carry out further work where I my client request, the lawyer fees will be increased accordingly. Please pay the debt in the arrangement with our client to determine the amount of interest. As in the letter dated seven days, our client, or I still have not received your company repaid the debt, I will according to my client's instructions without notice, in your case, take corresponding legal action, with recourse to the debt, all accumulated interest and so all expenses incurred.
In November 29, 1999, Shantou foreign economic law office to Hongkong Gu Kairen law firm lawyers reply: the property company commissioned by the issued in November 17, 1999, your lawyer's letter to the matter, to respond as follows: 1 "not revocable guarantee contract" is an invalid statement, without any legal binding on the property company. Because according to "Regulations on foreign exchange control of the people's Republic of China"ArticleArticle twenty-fourProviding external guarantee provisions ", can only be handled by financial institutions and enterprises meeting the conditions as prescribed by the state, and shall be subject to the approval by the exchange administration agencies". But "not revocable guarantee contract" is not approved by the. The 2 lawyers, by Daly Fung Group and China State Bank to settle the dispute.
In November 10, 2000, Guangdong big firm lawyers Wen Wu Yong letter Guohua Bank: a property company did not provide guarantee for Dalifou group borrowing from China State Bank. The lawyer commissioned by the property company, is the loan guarantee a thing to you. After checking the Hongye company shareholders and board records, April 17, 1998 Hongye company did not convene a general meeting of shareholders and the board of directors, but does not make for the Dalifou group limited to Guohua bank borrowings of HK $313000000 to provide security resolution. According to the articles of association of the company ninety-fourth Hongye: "the board of directors shall exercise the following powers, (eight) the amount of the net assets of the company in the range of 20% decided to mortgage assets of the company and other security matters". That is to say, Hongye company board of directors to guarantee approval authority in the net assets of the company in the range of 20%. In 1998 April, Hongye company's net assets of 252204200 yuan, the board of directors of the company shall not have the right to make decisions and to exceed the net assets of the company guarantee, more than the net assets of the company guarantee by the shareholders meeting. According to the legal representative of the company chairman survey Hongye Cai Chengtong, which confirmed that never to convene a general meeting of shareholders and board meeting to discuss and decide for the Dalifou group limited to Guohua bank loan guarantee. Chinese banks have never sent meeting Hongye chairman Cai Chengtong talks to provide security matters for the Dalifou group limited to its loan. Hongye company never issued "not revocable guarantee contract" and "Shantou Hongye (Group) the Limited by Share Ltd board of directors" for China State bank. From the Guangdong Provincial Higher People's court transferred to your bank to submit to the court of the property company "not revocable guarantee contract" and "board of directors", the property company chairman Cai Chengtong and director identify said resolution had never seen the guarantee contract and the board of directors. The "not revocable guarantee contract" and "board of directors", no signature property company chairman and board. Therefore, the guarantee contract and the resolutions of the board of directors is invalid in law. To sum up, the lawyer thinks, the bank according to the invalid "not revocable guarantee contract" and "board of directors" prosecution Hongye company was established not in accordance with the law. At the same time your actions to as listing Corporation Hongye company caused goodwill infringement, Hongye company will use legal weapons to protect their own interests.
December 4, 2000 - 6 day, Hongye company was director Cai Chengtong, Zheng Zhixiong, Xu Junzhao, Zhou Yingqi, Huang Chuwen, Rui Yiping were issued notarized copy of the "Declaration", the main contents are: I have since 1996 May to now Hongye company directors. In 1998 April 17 Japanese did not convene general meeting of shareholders or the board of directors to discuss the decision to provide security for the Dalifou Group Limited Xiang Guohua bank borrowings of HK $313000000 and related expenses. Also never signed for Daly Fung Group Limited to Guohua bank borrowings of HK $313000000 and related expenses to provide guarantee "board of directors" and "not revocable guarantee contract". Chinese banks have never sent representatives to discuss matters with me to provide security for the Dalifou group limited to its borrowing; Hongye company never issued "not revocable guarantee contract" and "board of directors" to Chinese banks, to provide security for the Dalifou group limited to its loan. In addition, according to the provisions of the articles of association of the company of the ninety-fourth industry, the board of directors has no right to provide a guarantee for the loan of HK $313000000 decision. I hereby declare. Then a property company in February 12, 2001 1998 issued by the office in April the list of directors Cai Chengtong, Chu Wen, Wang Banglin, Rui Yiping, Huang, Zhou Yingqi, Li Zhuangke, Xu Junzhao, Zheng Hanqin, Chen Yifeng, Cao Dai, Cheng Zhixiong were 11.
Two evidence in proceedings in the property company to the hospital (1) as "not revocable loan guarantee" in October 17, 1997 2000000 yuan loan to Shantou high tech Zone Shantou City Hongye King Kong Industrial Company to cooperative banks; (2) in May 27, 1998 to 1380000 yuan loan "Shantou high tech District Hongye Kong Industrial Company to Shantou City Cooperation Bank loan contract" as joint guarantee. Hongye company official in the two piece of evidence of the seal and in the case of Xiang Guohua bank issued "irreversible" stamp on the contract of guarantee is consistent.
The trial court in 2001 stamp seal is used on 20 March Shantou Municipal Public Security Bureau to investigate the property company in 1998, but the oral reply has been destroyed.
Due to the property company, Guohua bank and new company reimbursement issues in dispute, the consultations fail, Guohua bank so the property company, new company as a defendant, file a lawsuit to the court, the defendant requested two of Daly Fung Group Limited company owed its credit under the amount of loan of HK $44082157.07, $25771093.15 yuan and interest HK $1443383.13 yuan, 708517.61 yuan are jointly and severally liable, and bear all legal costs of the case.
The trial court that: the new company, Hongye company in November 28, 1997, April 17, 1998, the payments to the China State Bank guarantee. The new company has not made the plea and plea. The guarantee is its true meaning, established in accordance with the law. Hongye company claims guarantee on the official stamp the company seal and non, Guohua bank provides the Hongye company "board of directors" and "not revocable guarantee contract" is a forgery. But the company failed to provide the Hongye company in 1998 by the Public Security Department of the seal impression. At the time the property company official seal and legal representative of the use of Cai Chengtong's reputation and the property company to the court evidence, is consistent with the case of guarantee on the seal. And in September 2, 1998 China State Bank ref P / 113 / 98HKL "general" letters "prescribed" when we receive the following documents, and other documents required by the bank from time to time, and to determine whether the file format and content are in line with the will to provide credit to you:...... A property company and the new company duly guarantee executed deed, the deed is about to pay no less than HK $313000000 yuan of principal and accrued interest and overdue interest and other charges stated in the deed of guarantee money, together with the relevant resolutions of the board of directors......." The creditor's rights by the Hongkong high court in 1999 No. 883rd company liquidations confirmation, totaling HK $44082157.07 yuan, 25771093.15 yuan and interest of HK $1443383.13, $708517.61, that is to say the Dalifou Group Limited has been Guohua bank credit granting credit loans, thus determining the Guohua bank has received the property company with the new company guarantees. As for the later testimony Hongye company board of directors, the directors are unable to cross examination, and unilaterally issued by the evidence, should not be admissible evidence. The school recognized Hongye company guarantee established.
The case guarantee dispute. Issued by the property company, the new company's warranty shall apply the law of Hongkong. The guarantee of the property company, the new company's creditors is a company registered in Hongkong, so the case belongs to the external guarantee. Property company, the new company has no actual performance to the foreign exchange management authority for approval, and our country is a country of foreign exchange controls, our law enforcement provisions of foreign guarantee shall be approved by foreign exchange control agencies. According to the "The general principles of the civil law of the people's Republic of China"ArticleArticle one hundred and fifty"In accordance with the provisions of this chapter apply to foreign law or international convention, shall not violate the public interest of the people's Republic of china." And the Supreme People's court "On the implementation of the general principles of the civil law > < several problems of the people's Republic of China"ArticleArticle one hundred and ninety-four"Evasion of our compulsory or prohibitive legal norms, regulations effect" is not applicable foreign law, property company, the new company guarantee agreement applicable Hongkong law, belongs to evade our compulsory or prohibitive legal norms, the agreement is not legally binding in the laws of the people's Republic of domain therefore, the validity of guarantee that should apply the law of the Peoples Republic of china. According to the "The general principles of the civil law of the people's Republic of China"ArticleArticle seven"Civil activities shall have respect for social ethics, and may not harm the public interest, undermine state economic plans, disrupt social economic order." And the Supreme People's court "On the interpretation and application of the "PRC Security Law > problems"ArticleArticle sixRegulation: "in any of the following circumstances, the foreign guaranty contract is invalid: (a) unless approved by the competent authority of the country or the foreign guarantee registration;......" Property company, the new company guarantees to banks in China without the approval of the relevant competent departments of the state or the registration and violation of the principle of public order and good customs in China, do not have the force of law. Hongye company and the new company was issued by its guarantee contract and decided by the board of directors of commitment, guarantee the security after the government agreed to, and if as a result of failure to complete the procedures prescribed by law to guarantee the invalid, it will bear all the responsibility. Therefore, in the case of invalid guarantee responsibility should be borne entirely by the property company and the new company. The legal consequences caused by the Supreme People's court "On the interpretation and application of the "PRC Security Law > problems"ArticleArticle sevenThe main contract: "no fault, the creditor, the creditor to the principal contract economic loss guarantees, shall assume joint and several liability:......" The provisions of the property company, the new company shall, in the case of debt are jointly and severally liable.
To sum up, China state bank property company, a new company to have according to, to support the debt are jointly and severally liable; country guarantee Chinese banks for the property company, the new company is effective against the laws of people's Republic of China, shall not be accepted. According to the "The general principles of the civil law of the people's Republic of China"ArticleArticle one hundred and fifty, "Civil Procedure Law of the people's Republic of China"ArticleArticle one hundred and thirty-eight, No.Article one hundred and forty-sevenAnd the articleArticle one hundred and forty-nineRegulations, the decision as follows:
Property company, the new company should be in the entry into force of this decision within 10 days after the Chinese bank joint compensation principal amount of HK $44082157.07, $25771093.15, the interest of HK $1443383.13, $708517.61 (calculated to January 3, 2000) as well as the principal from January 4, 2000 to pay date of interest (calculated in accordance with the provisions of the September 2, 1998 China State Bank ref P / 113 / 98HKL "general" letters "interest rate).
The case acceptance fee of $142408.05, $227456.98, maintenance fee of RMB 322828 yuan, shared by the property company, the new company. Chinese banks have pay the case acceptance fee $142408.05, $227456.98, in litigation costs 322828 yuan, property company, the new company will be payable directly pay the Guohua bank number, the court shall not return.
Hongye company refuses to accept the original judgment, the appeal to the trial court finds that said: first, the true meaning of the guarantee contract is Hongye company said, this identification is wrong. The 1 case, a criminal justice related materials display general manager the guarantee contract property company General Manager Department of primary party Zeping and Hongkong Da Li Feng company Chen Shaoying conspiracy forgery for, its behavior has been suspected to constitute the crime of fraud of the loan, the guarantee contract due to illegal and invalid. According to the Supreme People's court "The provisions on several issues involving suspected economic crimes in the trial of cases of economic disputes"ArticleArticle elevenThe provisions of this case, the request will be transferred to the public security organ to handle. 2 property company Xiang Guohua bank issued "the true meaning is not irrevocable guarantee contract" is not a property company, this behavior has constituted the ultra vires. The board of directors of the company is the company that organ, Hongye company board of directors never in April 17, 1998 to "not revocable guarantee contract" to make the resolution of the board of directors, the board of directors of the company "Hongye resolution" is fiction. According to "the resolution of the board of directors" made "not revocable guarantee contract" is stamped Hongye company seal, nor does it constitute the true meaning of Hongye company said, on the contrary, no matter is any person Hongye company stamped with the official seal, is ultra vires. The 3 China State Bank obligations to the security documents not careful examination, and has the obvious mistakes in the process of accepting collateral, should be presumed to be the case in Guohua bank shall guarantee exceeding authority behavior know, in the case of the guaranty contract shall have no legal effect. Two, in the case of the trial court to declare bankruptcy management office in Hongkong Guohua bank debt, as principal claim the confirmation, this identification is wrong. Hongye company enjoys the principal debtor's right of defense, including but not limited to the amount of the claim of real defense. Three, the trial court improper application of the law. The court ruled that the contract of guarantee system of real meaning, but the foreign guaranty without approval of the competent departments of the state is invalid, Hongye company guarantee this void has all the fault, the determination of applicable law is obviously inappropriate. China State Bank for invalid guarantee, inescapable fault. On the other, Hongye company in the court, the original judgment in the identified in November 17, 1997 Hongkong Gu Kairen law office issued "on the Daly Fung Group Limited to Hongye company (the borrower) is not Guohua bank debt issues" letter and the November 29, 1999 Shantou city of foreign economic law firm on behalf of Hongye company raised objections to the Hongkong Gu Kairen law firm reply part of the facts. To sum up, Hongye company request: 1 the alleged economic crimes, requested the court of the second instance in ascertaining the facts, to withdraw the first instance judgment, the case will be transferred to the public security organs to deal first. 2 in the case of first instance procedure for serious violations of law, request the court of second instance to withdraw the first instance judgment, ruling the case remanded. 3 the court finds that the facts are not clear, the improper application of the law, request the court of second instance shall be amended according to the law or remand. In the case of a second instance 4, the cost of litigation by the appellee bear.
BOC Hongkong company said in reply: one, a judgment that the guarantee contract is the true meaning of Acer company is completely correct. 1 property company listed evidence can not prove that the property company "the resolution of the board of directors", "not revocable guarantee contract" is a fictional assertions. This case belongs to the cases of economic disputes, even though some of the natural person in other cases involving economic crimes, but is irrelevant to the case, can be separated from the trial with the case, which belongs to the Supreme People's court "The provisions on several issues involving suspected economic crimes in the trial of cases of economic disputes"ArticleAProvisions, property company should not be supported. "The 2 issued by the property company not revocable guarantee contract" is a legitimate and effective, Hongye company called "untrue declaration of will, which belongs to the ultra vires" claims can not be established. The resolution of the board of directors of Hongye company internal documents, true to their external legal effect "is not irrevocable guarantee contract", rather than the resolution of the board of directors. The 3 respondent is accepted in the premise that commitment and assurance Hongye company under the guarantee. Hongye company with its internal management procedures deny the effect of guarantee contract is not established. Two, Hongkong Oro certain rights shall be as the main creditor's rights confirmation. Three, a trial of the applicable law is correct. Hongye, not according to our countryThe Guarantee LawThe foreign guarantee approval shall fulfill their obligations, resulting in the guarantee contract is invalid due to violation of the provisions of state laws and mandatory, Hongye company bears all the fault, shall bear all the liabilities for compensation. It requests the court to dismiss the appeal of the property company.
The new company did not appeal, also did not answer.
The court examined: the case of first instance, Guohua bank to the trial court provides stamped with the seal of the company and the company's April 17, 1998 "board of directors", objection Hongye company on the "board of directors" authenticity, the trial court does not support. Hongye company appeal is still part of the fact that objection, that the "board of directors" is false, but the authenticity of the don't deny the "board of directors" on the cover of the seal of the company. Property company said its board resolutions according to the time sequence number, and provides the company Shan Hong Dong is sequentially connected word [1998] No. nineteenth, No. 020, No. 021 of three copies of "board of directors", the three resolutions formed in April 6, 1998 April 21, 1998, respectively, in August 5, 1998, to show that the company in April 17, 1998 no meeting of the board of directors. Hongye company also provides the company director Cai Chengtong, Zheng Zhixiong, Xu Junzhao, Zhou Yingqi, Rui Yiping, Huang Chu Wen respectively issued notarized copy of the "Declaration", the director in the "Declaration" was denied in April 17, 1998 held a board of directors and issued the "board of directors". And according to the provisions of the articles of association of the company 111st Hongye company provides a resolution of the board of directors, the directors shall be the sign, but in this case the "board of directors" no director's signature. This house believes that, although the "board of directors" on Hongye company seal is real, but the evidence materials provided by the parties, the court makes Hongye company has not held in April 17, 1998 the board of directors to discuss security issues, the authenticity of the property company "board of directors" is contained, the court shall not confirmed.
The court also recognized the zhongshuohongye company of the original judgment in November 17, 1997 Hongkong Gu Kairen law firm to Hongye company issued "on the Daly Fung Group Limited (the borrower) is not Guohua bank debt issues" letter and November 29, 1999 the Shantou municipal foreign economic law firm on behalf of Hongye company raised objections to the Hongkong Gu Kairen law firm reply of part of the facts. The court is based on the identification of correspondence Guohua bank to provide this part of facts, Hongye company although objected, but it only shows their claims, authenticity and failed to provide any evidence to deny the mail, so the judgment on the part of facts, the court affirmed, Hongye company put forward some of the facts in this objection, the court shall not support.
The trial court found for other facts, have relevant evidence, the appellant Hongye company does not raise any objection, the hospital has to be confirmed.
The Institute also found that: according to the Hongkong Special Administrative Region in 2001 July through the "Chinese Bank (Hongkong) Limited (merger) Ordinance", including the China Commercial Bank branch in Hongkong, 10 Hongkong banks will all the assets, liabilities into the Po Sang bank ltd.. Po Sang Bank Ltd., in October 1, 2001 changed its name to the official China Bank (Hongkong) Co., ltd.. Since October 1, 2001, total assets, China Commercial Bank Hongkong branch's liabilities, responsibilities and all rights and obligations are Chinese Bank (Hongkong) limited to enjoy and take.
In November 24, 2003, Daly Fung Group Limited company liquidator Liao Yaoqiang to file number SLIU / GH / St / 0311-L31854 function, once again confirmed Guohua bank on Daly Fung company claims amount to the principal of HK $44082157.07, $25771093.15, the interest of HK $1443383.13, $708517.61; property company, the new company is the domestic guarantor loan the guarantor responsibility, to the individual contract of guarantee are not exceeding HK $313000000.
On the other, Hongye company during the term of the court, to the hospital provides case crime Guangdong Province registered in Shantou City, Guangdong province report form of economy of Shantou City Public Security Bureau Criminal Investigation Detachment to the West Branch of Public Security Bureau of Beijing city "on the Fang Zeping (also known as Fang Yanping), Chen Shao suspected of loan fraud case to the letter" Beijing City People's Procuratorate first branch, Beijing seized a criminal word (2001) 314th indictment, the Beijing first intermediate people's Court (2002) at the beginning of the word no. 1619th criminal judgments as evidence in the one, the Beijing first intermediate people's court (2002) in the first 1619th criminal judgments decided Hongye company general manager Fang Zeping constitute crime of fraud on letter of credit, but the crime and criminal facts the judgement that Fang Zeping, had no direct contact with the case guarantee dispute.
The court after hearing that: the case for the guarantee contract disputes, the guarantee system of mainland companies as a guarantor, guarantee for foreign currency loans of Hongkong company, the guarantee of foreign guaranty. The parties agreed in the contract of guarantee for the Hongkong law, but because of the Hongkong Special Administrative Region and the mainland of China belong to different jurisdictions, according to the Supreme People's court "On the implementation of the general principles of the civil law > < several problems of the people's Republic of China"ArticleArticle 194The establishment of the rules, foreign contract parties choose the applicable law, shall not be prohibited law evade our compulsory or. The mainland of China are mandatory for external guarantee, the guarantee contract if applicable Hongkong law, apparently to avoid the mandatory provisions, the parties of contract of guarantee applicable Hongkong law contract shall have no legal effect, the disputes should apply my domestic law as the governing law.
In this case the trial only guarantee contract disputes, contract of guarantee to the principal contract the principal debtor Hongkong Da Li Feng Group Co Ltd has insolvency. In January 3, 2000, the high court of the Hongkong Special Administrative Region to the 1999 No. 883rd company liquidations confirmed China State Bank of Dalifou Group Limited company's total $44082157.07, $25771093.15 and the interest of HK $1443383.13, $708517.61. In May 22nd the same year, Daly Fung Group Limited company's liquidator at Ernst & Young Hongkong lawyer Liao Yaoqiang to file NC / PY / DC / St / 0005-LI0953 function, to confirm the claims of Guohua bank on Daly Fung Group Co. Ltd as the principal of HK $44082157.07, $25771093.15, the interest of HK $1443383.13, $708517.61. During the term of this court, Daly Fung Group Limited company liquidator again the above-mentioned debt allowance was confirmed. The company said its main appeal Hongye enjoy the debtor's right of defense, including but not limited to the amount of the claim contradicts the authenticity, the court should not be Guohua bank to declare bankruptcy management agency debt as the debt obligations. The opinion of this court, Hongye company really enjoy the right of defense, but the property company failed to put forward to confirm sufficient evidence that the high court of the Hongkong Special Administrative Region appointed Daly Fung Group Co. Ltd. the liquidator's the principal debt amount is false or inaccurate, the principal debt so Daly Fung Group Limited company liquidator confirmed the amount, the court for confirmation. The main debt interest and principal is plan to January 3, 2000, the original text of the judgment should bear in representation of Hongye company and new company responsibility, added to the main debt principal and interest payment date from January 4, 2000. But Chinese banks in the action, did not advocate in January 4, 2000 after the interest, in the second instance, China Bank (Hongkong) Limited has not advocated in January 4, 2000 after the interest, the January 4, 2000 interest, the court shall not consider.
In this case the zhongshuohongye company Xiang Guohua bank "is not irrevocable guarantee contract", the guarantee contract with the company seal, and in our hospital during the second instance, Hongye company made it clear that the authenticity of the seal of the company not dissent. Hongye company claims that the guarantee contract is the company was acting general manager Fang Zeping fake, but it failed to provide sufficient evidence to prove it. Hongye company while providing a criminal judgment court that Fang Zeping of criminal behaviour, but the verdict that Fang Zeping constitute crime of fraud on letter of credit, the crime and the case is not directly related to the case, the request will be transferred to the public security organ to the litigation request, the court shall not support. Supreme People's court.On the interpretation and application of the "PRC Security Law > problems"ArticleArticle twenty-threeThe first paragraph: "third people unilaterally issued guarantees to creditors in writing, creditors to accept without objection, guarantee contract." Because the property company to Guohua bank provides cover real seal company "not revocable guarantee contract", the "not revocable guarantee contract" has been accepted by China State Bank without objection, so according to the above facts and rules, should recognize China State Bank and Hongye company guarantee contract the establishment of.
Hongye company advocate seal the guarantee contract is a kind of ultra vires acts, and the Chinese banks should be aware of, so the contract of guarantee for China State Bank shall have no legal effect. Supreme People's court.On the interpretation and application of the "PRC Security Law > problems"ArticleArticle elevenStipulates: "the legal representative of the legal person or other organization, the people responsible for the guarantee contract concluded beyond the authority, unless the other party knew or should have known that its beyond his scope of authority, such act of representation is valid." While the property company failed to provide evidence that Guohua bank guarantee contract knew or should have known that the guarantee contract is the legal representative of the ultra vires concluded. Chinese banks made in the contract of guarantee Hongye company at the same time, also made a resolution Hongye company real seal to the board of directors of the company, the resolution that the guarantee behavior Hongye company is after the board agreed. Although the court after the hearing, the authenticity of the "do not confirm the final resolution of the board meeting" is contained, but the property company is only occurs in the case of disputes, raised an objection to "board of directors" authenticity, it cannot provide sufficient evidence to prove that the country Huayin for secured contracts, which knew or should have known the guarantee contract is signed by the ultra vires. On the contrary, Guohua bank cover a resolution true seal property company board of directors fact, it shows that the Chinese bank had every reason to believe that the property company issued the guarantee contract, after its board of directors agreed, not ultra vires. So that the property company stamp guarantee contract is a kind of ultra vires, contract of guarantee for Chinese banks do not have the force of law grounds of appeal can not be established.
In this case, the second instance, the new company after legal subpoena, without justifiable reasons, all did not appear involved. Resolution on the issue will provide in Guohua bank guarantee contract and the new company, the new company does not raise any objection. The court ruled that the new company issued security is its true meaning, established in accordance with the law is correct.
Hongye company and the new company is the guarantee for the Hongkong company to the Bank of Hongkong's foreign currency borrowing, the security is the guarantee. According to the relevant provisions of China concerning foreign guaranty, such guarantees should be to handle the relevant formalities of approval and registration of foreign exchange management department. In the case of property company and issued new company guarantee contract fails to go through the above procedures, according to the Supreme People's court "On the interpretation and application of the "PRC Security Law > problems"ArticleArticle sixPart (a) of the Convention, the guarantee contract should be determined invalid. The court is the right that the guarantee contract. But the court ruled that the guarantee contract invalid responsibility is undertaken by the property company and the new company, which belongs to the division of responsibilities is improper. For causing the guarantee contract is invalid, the creditor Guohua bank also has the fault. Chinese banks as creditors in the acceptance guarantee, have the obligation to understand whether the guarantor property company and new company has issued such a guarantee qualification, issued such a guarantee approval is required by the relevant departments, the guarantor to perform the formalities for approval, if the security procedures incomplete, Guohua bank has an obligation to urge the guarantor to make correction in order to obtain a complete, effective guarantee, so that their interests are better protected. But the issue in the property company and the new company in this case guarantee without the approval of relevant departments of foreign exchange registration situation, Guohua bank fails to perform the obligations and be accepted, so for this case involved two guarantee contract due to lack of legal approval and registration procedures and ineffective, there are fault Hongye the company, the new company and China State bank. Hongye company about the causes for guarantee contract Guohua bank has the mistake to appeal, the court shall support. The court held that the guarantee contract invalid responsibility is undertaken by the guarantor property company and the new company, division of responsibilities is improper, the hospital should be corrected. According to the "The general principles of the civil law of the people's Republic of China"ArticleArticle sixty-oneFirst, "Guaranty Law of the people's Republic"ArticleArticle fiveThe provisions of second, Hongye company and new company shall respectively against the principal debtor is unable to repay part of bear the corresponding compensation liability. Even if the property company and the new company commitment if not handled the procedures prescribed by law to guarantee is invalid, it will bear all the responsibility, but the promise shall be deemed null and void. As mentioned above, to cause guarantee contract is invalid, property company, Chinese banks are at fault for the new company and creditor country, according to the provisions of relevant laws, property company, the new company should bear the corresponding compensation liability of the debtor is unable to repay part. If the responsible property company and the new company to make all the responsibility commitment effectively, not only in violation of the above provisions, but also avoid the related regulations on foreign exchange administration, the creditors in the foreign guaranty contract because without approval from the foreign exchange management department registration in our country without the effect situation, has made the same guarantee contract the results, so the property company and new company the pledge shall be deemed null and void. The new company although not appeal, but according to the Supreme People's court "Some provisions on the reform of civil trial of economic problems"ArticleArticle thirty-fiveThe provisions of the original judgment, the division of responsibilities of improper part, the school also should be corrected.
On the other, Hongye company although appeals procedure called a serious violation of law, request the case remanded. But not in the appeal put forward specific facts and reasons to prove the existence of the legal case should be remanded case, the property company request remand of the appeal, the court shall not support.
To sum up, the original judgment in addition to Hongye company issued by the "board of directors" that authenticity is wrong, that other parts of the fact clear division of responsibilities, but for the property company and the new company's improper, the corrected. On the other, the Guohua bank merger change situation, the rights and obligations of the original Chinese banks enjoyed in the case are by Bank of China Hongkong company enjoys and bear. According to the hospital "Civil Procedure Law of the people's Republic of China"ArticleArticle one hundred and fifty-threeThe first paragraph of article (three), "The general principles of the civil law of the people's Republic of China"ArticleArticle sixty-oneFirst, "Guaranty Law of the people's Republic"ArticleArticle fiveSecond, the Supreme People's court "On the implementation of the general principles of the civil law > < several problems of the people's Republic of China"ArticleArticle 194The Supreme People's court "On the interpretation and application of the "PRC Security Law > problems"ArticleArticle sixPart (a) the provisions of item, the decision as follows:
A revocation of Guangdong Province, the higher people's Court (2000) by two at the beginning of Guangdong No. fifth of civil judgment;
In two, Daly Fung Group Co. the company owed Chinese Bank (Hongkong) limited amount of principal HK $44082157.07 yuan, 25771093.15 yuan, interest of HK $1443383.13, $708517.61, by Shantou Hongye (Group) Limited by Share Ltd to Daly Fung Group Limited company unable to pay part of the 1/3 to China Bank (Hongkong) Limited liability.
In three, Daly Fung Group Co. the company owed Chinese Bank (Hongkong) limited amount of principal HK $44082157.07 yuan, 25771093.15 yuan, interest HK $1443383.13 yuan, 708517.61 yuan, the new Shantou Special Economic Zone Development Co. Ltd. to Daly Fung Group Limited company unable to pay part of the 1/3 to China Bank (Hongkong) limited liability.
The first instance court costs $142408.05, $227456.98; the second instance the case acceptance fee of RMB 1422277.13 yuan, the China Bank (Hongkong) Co. Ltd. for $47469.35, $75818.99: 474092.38 yuan; Shantou Hongye Limited by Share Ltd (Group) for $47469.35, $75818.99, 474092.38 yuan; the new Shantou economy the SAR development limited company to undertake the dollar 47469.35 yuan, HK 75818.99 yuan, 474092.38 yuan; maintenance fee 322828 yuan, by Shantou Hongye (Group) Limited by Share Ltd, Shantou Special Economic Zone Xinye development limited each bear 161414 yuan.
This judgment is the final judgment.

The presiding judge Wang Men
Acting judge Ren Xuefeng
Acting judge Chen Jizhong
Two 00 four years in July 9th
The clerk Yang Honglei