Will you have the obligation to repay the repayment?

Introduction to the case

Xiao Zhang is an individual business operator. In 2019, because of the need to do business, Xiao Zhang borrowed 100,000 yuan in money, and agreed to pay off by the end of 2020.

However, after the loan expires, Xiao Zhang did not return it as agreed.

Mr. Yu found Xiao Zhang's parents and asked Xiao Zhang's parents to sign a name on the lack. In November 2021, Mr. Yu complained Xiao Zhang and Xiao Zhang's parents to the court, requesting to order Xiao Zhang to repay the loan, and the parents of Xiao Zhang were responsible for the joint responsibility.

Xiao Zhang recognized the facts of the borrowing.

Xiao Zhang's parents argued that signing on the arrears only showed that he knew the facts of the borrowing facts and did not have the meaning of guaranteeing the guarantee for the arrears. At the same time, Xiao Zhang is an adult and does not live with his parents. His parents did not have the obligation to help him repay the loan.

According to the trial, the "Provisions on Several Issues of the Supreme People's Court on the Application of Laws on Civil Loan Cases" stipulates:

Others signed or stamped on the creditor's rights vouchers such as debit, receipt, arrears, etc., but did not indicate that their guarantor identity or associated responsibility, or that it could not be presented to the guarantor through other facts. The court does not support it.

In this case, the borrowing relationship between Xiao Zhang and Mr. Yu Yu shall bear the obligation to repay in accordance with the agreement in borrowing.

Xiao Zhang's parents signed on the debit, and did not indicate the intention of the guarantor's identity or the intention of guaranteeing the responsibility, and there were no other facts to prove it, so the guarantee of the guarantee was not established.

In the end, the court ruled that Xiao Zhang returned a loan of 100,000 yuan to Mr. Yu and rejected Mr. Yu's other lawsuits.

Judge

The identification of the relationship has a clear basis in law. According to the provisions of the "Supreme People's Court on the Application of Laws on the Application of Cases of Civil Loan Cases", only signed or stamped on the creditor's rights vouchers such as other people's receipts, receipts, arrears, etc. Established, unless the guarantor's identity is expressed, or stated that he is willing to bear the responsibility, or it can predetermine it as a guarantor through other facts.

If there are guarantors in the borrowing relationship, creditors can sign a guarantee contract in order to realize their creditor's rights.

Article 600 of the Civil Code stipulates that "guarantee contracts are to ensure the realization of creditor's rights, guarantors and creditors agreed that when the debtor does not fulfill its due debts or the parties agreed in the parties, the guarantor fulfills its debt or bear responsibility contracts. ","

The content of the guarantee contract generally includes the types and amounts of the guaranteed debt rights, the term of the debtor to perform the debt, and the guarantee methods, scope, and period. The guarantee contract can be a separate written contract or a guarantee clause in the main debt and debt contract.

The judge reminded that in daily life, some people are unwilling to write the details in the borrowing contract or creditor's rights due to identity relationships, emotional factors, etc., which may leave hidden dangers for the realization of creditor's rights.

If you have not signed a separate guarantee contract or add the guarantee terms in the loan contract, in order to achieve creditor's rights, the creditor is best to ask the guarantor to stimulate the word "guarantor" or "willing to bear the guarantee responsibility" on the debit. The contract should also be preserved as much as possible to prove the text records, audio and video records that can prove the relationship.

Similarly, if the signature does not bear the meaning of guarantee responsibility, do not sign after similar expressions, otherwise it is likely to bear guarantee responsibility.

Author: Wang Jia Fangshan Court

Source: Beijing Fa.com, the Home of Legal Affairs

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