The mortgage shop is guaranteed, why freezes the guarantee of the guarantor's bank account

"Prosecutor Zhao, tell you a good news, the court also returned the execution funds to me." Recently, Ms. Yao called for the prosecutor Zhao Xiaojin, the prosecutor of the Jinshui District Procuratorate of Zhengzhou City, Henan Province. Putting down the phone, Zhao Xiaojin remembered the name of Ms. Dian. A few months ago, she did call once, and that time her salary card was just thawed.

The host prosecutor Zhao Xiaojin (middle) and Liu Haodong (left) communicated with the parties on the case of the case.

Civil lending repayment cannot be guaranteed to be responsible for joint and bring

Wang and Ma had a dispute over borrowing. In March 2018, after mediation by the court, the two parties reached a mediation agreement. The agreement stipulates that Wang paid Ma Mou 700,000 yuan at one time before December 31, 2018. At the same time, Wang Moubin and Liao Mou were willing to provide a guarantee for Wang's 700,000 yuan borrowing; Yao was willing to provide a mortgage guarantee for all of his shops, agreed that Ma Mou would buy a house on the store on the day of receipt of the repayment. The contract and invoice return Yao. After the two parties and the guarantor signed on the agreement, Yao handed over the relevant procedures for the filing of the house purchase contract and the purchase invoice to Ma. The property did not complete the mortgage registration.

In a blink of an eye, when the repayment date stipulated in the mediation agreement, Wang failed to repay Ma Mou on time. Due to the deep grievances between the two sides, on March 18, 2019, Ma said Wang to the court and asked the court to determine that Wang had repaid the principal and interest of the borrowing. Wang Moubin and the three people were liable for liability for liability.

In April 2019, the Zhengzhou Jinshui District Court applied for a small litigation procedure for the case, but although the four defendants were summoned by the court, they did not attend the lawsuit. The court believes that the four defendants have not arrived in the court to participate in the lawsuit, deemed the abandonment of their own litigation rights, and does not affect the court's referees in accordance with the existing evidence and the facts that the facts found in accordance with the law; The true meaning of the truth should be confirmed and valid; the plaintiff's demands are legitimate, and they should be supported.

As a result, the Jinshui District Court made the following judgments in accordance with relevant laws and regulations: the defendant Wang did not repay the arrears in accordance with the agreement, and constituted a breach of contract. ; The defendant Wang Moubin, Liao Mou, and Yao voluntarily signed the mediation agreement as the guarantor, so the three defendants were responsible for the defendant Wang Mou's above -mentioned debt; After guaranteeing the responsibility, he has the right to recover from the defendant Wang.

Shortly after the court made the first trial, Yao's salary account was frozen, and the money in the bank card was also executed.

The procuratorial supervision discovered the problem, so why the bank account was frozen

At that time, Yao had just got married and had children. Because of the frozen salary account, the money in the card was executed, and his life was in trouble. Yao did not accept the first trial judgment and applied to the court for retrial. The retrial of the Jinshui District Court believed that the original trial was clear and the applicable law was correct. On August 25, 2020, Yao's retrial application was rejected. On September 11, 2020, Yao applied to the Jinshui District Procuratorate for supervision.

After accepting Yao's supervision application, the prosecutor handling the case carefully reviewed the original file and found that the focus of the controversy in the case was whether the guarantor Yao should bear the joint guarantee responsibility.

The procuratorial organs were carefully reviewed and investigated and verified that the original judgment was wrong in entity and procedure.

First of all, the mediation agreement signed by Yao clearly stipulated that Yao provided a mortgage guarantee for Wang by personal real estate. In accordance with the relevant provisions of the "Law of the People's Republic of China", if the property is mortgaged, the mortgage registration shall be applied, and the mortgage right shall be established when registered. In this case, because the property involved in the case was not registered, Ma Mou had not established the mortgage right of the property. The Property Law also stipulates: "A contract on the establishment, change, transfer, and elimination of product rights is established among the parties. In addition to the laws or agreed on the contract, it takes effect when the contract is established; Contract validity. "This shows that the mortgage right does not affect the effectiveness of the mortgage contract. In the agreement, Yao provided the meaning of the mortgage guarantee clearly that the guarantee was the guarantee, that is, the guarantee of the mortgaged property was provided as the guarantee. And ensure the responsibility of the responsibility of the responsibility. As a guarantor guarantee and provides property insurance as a third party, the scope of property about the responsibility is inconsistent. Therefore, the court of first trial decided that Yao had an error in the application of the law of liability for assurance.

Secondly, the Civil Procedure Law and the Implementation Measures for the Pilot Reform of the Simplication of Civil Litigation Procedures "made relatively clear provisions of the target amount of small litigation procedures. In this case, the subject matter of the litigation was 700,000 yuan, which obviously did not meet the conditions of the applicable small litigation procedures. The trial procedure of the final trial was deprived of the parties' appeal rights, which was a procedural error.

In view of this, the Jinshui District Procuratorate believes that the application of civil judgments made by the district's courts is indeed wrong, violating the law and depriving the parties' appeal rights. According to the relevant provisions of the Civil Procedure Law, on November 13, 2020, the court submitted a retrial prosecution proposal to the Jinshui District Court in accordance with the law.

The second trial revoking the original trial judgment is based on the mortgage value as the limitation of responsibility

After the Jinshui District Court adopted the prosecution proposal, the retrial procedure was launched in the case. After the retrial of the court, the case was that in this case, the case involved in the mortgage and mortgage right was not established, but the reason for the unreasonable mortgage registration was that Yao did not handle the ownership of the real estate, and if Yao did not bear the guarantee responsibility, it would be able Obviously depart from the cognition of the general public. In this case, the mortgage guarantee liability is converted to joint guarantee liability according to the actual situation. The original judgment was correct and maintained. The small litigation procedure applicable to the original trial is indeed flawed. The court's retrial was corrected, and the parties had the right to appeal. On April 23, 2021, the hospital made a retrial judgment to maintain the original judgment. Yao still refused to accept and appealed to the Zhengzhou Intermediate Court. After hearing, the Zhengzhou Intermediate Court issued a second trial judgment on May 27, 2021 to revoke the first instance judgment of the Jinshui District Court to judge Wang Moubin and Liao. The value of the shop is limited to the debt of the debt determined by this judgment.

(Source: Procuratorial Daily Author: Liu Lixin Wang Tianrun Zhu Guotao)

- END -