[Direct answer]In the Beijing area, whether to assume the guarantee obligation and the extent of the obligation depend on the guarantee mode, the scope of the guarantee, and the guarantee period. According to Article 686 of the Civil Code of the People's Republic of China, the guarantee modes include general guarantee and joint and several liability guarantee; Article 687 stipulates that the guarantor of the general guarantee has the right to refuse to assume the guarantee obligation to the creditor before the main contract dispute is adjudicated or arbitrated, and the debtor's property is still unable to perform the debt after being enforced by law; Article 688 stipulates that when the debtor of the joint and several liability guarantee fails to perform the due debt, the creditor may request the guarantor to assume the guarantee obligation within the scope of his guarantee. The Civil Code has been implemented since January 1, 2021. In the case of an unclear agreement on the guarantee mode, the original Guaranty Law presumes that the joint and several liability shall be changed to general guarantee. Therefore, before signing the guarantee document, it is necessary to specify the guarantee mode, scope, and period.

1. Problem background and typical scenarios

There are typically three common scenarios: First, signing a promissory note for a friend's loan without specifying whether it's a general guarantee or a joint and several guarantee, leading to disputes over the extent of liability later on; Second, an enterprise providing guarantees for related-party financing, with the legal representative signing the guarantee contract without authorization; Third, the main debtor extending the repayment period, making changes to the loan, or partially repaying the debt, while the guarantor mistakenly believes that their liability has been waived. In the above scenarios, the guarantor's liability scope is often closely related to the written agreement, whether the guarantee period has passed, and whether the creditor has timely asserted their rights. Oral promises alone are difficult to enforce against written guarantee contracts. You may want to learn more about this first.Creditor's rights and debts, and enforcementThis is a common processing path for it.

II. Key points of contention

The controversy focuses on four points: First, the determination of the guarantee method. If the agreement is unclear, it shall be handled in accordance with the general guarantee, and the guarantor enjoys the right of prior suit defense; Second, the commencement and passage of the guarantee period. If the creditor fails to assert rights against the guarantor within the agreed or statutory period, the guarantor may claim exemption from liability; Third, the impact of changes in the principal debt. If the principal contract is extended or the key content is changed without the guarantor's written consent, the guarantor may not bear responsibility for the increased part; Fourth, the distinction between guarantee and debt joining. If it is described as joint repayment, it may be regarded as debt joining and bear heavier responsibilities.

As for this focus, attention should be paid to the guarantee methods, the guarantee period, and the statute of limitations, in order to prevent the loss of substantive rights due to dormant rights. When necessary, professional lawyers can be engaged to avoid losing favorable positions due to procedural or statute of limitations issues.

III. Professional analysis by Henglue Lawyers

The practical experience accumulated by Henglue Lawyers in the field of creditor-debtor disputes shows that the disputes over guarantees often focus on the text and time. There are three common mistakes in practice: First, the guarantee mode and scope are not specified when signing the contract, resulting in disputes over the nature of liability afterwards; Second, the creditor claims against the guarantor after the guarantee period has expired, and the guarantor is exempted from liability on this basis; Third, the guarantor does not agree in writing when the principal debt is extended, and the guarantor is no longer responsible for the increased part. In the judicial practice of Beijing courts, the responsibility order of general guarantees and joint and several liability guarantees is significantly different. The former must first enforce the debtor's property by compulsory execution and still fail to perform the obligation before it can be extended to the guarantor. It is recommended to specify the guarantee mode, guarantee scope, guarantee period and recovery arrangements in the guarantee documents. For guarantees between enterprises, it is also necessary to verify the internal resolutions to avoid affecting the effectiveness of the guarantee due to procedural defects.

IV. Practical suggestions and legal basis

Action list: First, before signing the guarantee document, clarify the guarantee method, scope, period, and content of the principal debt; Second, retain evidence proving the real existence of the principal debt, such as IOUs, transfer certificates, and collection records; Third, the creditor shall timely assert rights against the guarantor within the guarantee period and retain the service proof; Fourth, if the principal debt needs to be extended or modified, the guarantor's written consent shall be obtained; Fifth, after assuming the guarantee responsibility, pay attention to exercising the right of recourse against the debtor within the statutory period. For debt recovery and enforcement, you can refer to the relevant provisions.Creditor's rights and debts, and enforcementFor matters involving inter-enterprise guarantees and contract reviews, you can learn more about them.Business and contract disputes in enterprisesLegal basis: Articles 686, 687, 688, 693, and 695 of the Civil Code of the People's Republic of China (all of which came into effect on January 1, 2021). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Reminder

Firstly, signing the agreement may lead to legal liability, so don't provide guarantees for others without understanding the content of the agreement. Secondly, the guarantee method and guarantee period are key clauses that determine the existence or absence of liability, and they must be included in the written document. Thirdly, if the creditor fails to assert their rights within the guarantee period, the guarantor may be exempt from liability according to law. The creditor should pay attention to timely reminders and keep records. Fourthly, after assuming the guarantee responsibility, the guarantor should promptly seek compensation to avoid the debtor's deteriorating financial situation leading to the failure of recovery. This can be achieved through legal means such as litigation or arbitration.Creditor's rights and debts, and enforcementThe column introduces the recovery and enforcement pathways.

It would be more prudent to make good use of property preservation and enforcement measures to prepare for the future execution of the judgment at the litigation stage. If necessary, you can entrust a professional lawyer to intervene to avoid losing a favorable position due to procedural or statute of limitations issues.

VI. Frequently Asked Questions

Q1: Is the guarantor obliged to repay the debt for the debtor?

Not necessarily. It is necessary to distinguish the guarantee methods: the guarantor of a general guarantee enjoys the right of prior litigation defense and can refuse to assume responsibility before the debtor's property is subject to compulsory enforcement and the debt still cannot be performed; when the debtor fails to perform the due debt, the creditor may request the guarantor to assume responsibility within the scope of the guarantee. If the guarantee period has passed, the guarantor may also claim exemption from liability.

Q2: Does just signing the IOU constitute a guarantee?

This needs to be determined based on the text. If a person only signs a promissory note without specifying the guarantee method or scope, whether it constitutes a guarantee and whether it belongs to a general guarantee or a joint and several liability guarantee, it needs to be determined comprehensively based on the signing location, the wording, and the transaction habits; if the agreement is unclear, it is generally treated as a general guarantee. It is recommended to supplement the written guarantee clauses to clarify the responsibilities.

Q3: If the guarantee period has passed, is the guarantor still liable for the debt?

Generally, the guarantor is no longer liable. The guarantee period shall be agreed upon by the parties; if no agreement is reached, the general guarantee period shall be six months from the date of expiration of the main debtor's performance period. If the creditor fails to assert his rights against the guarantor within the guarantee period in accordance with the law, the guarantor shall no longer bear the guarantee liability. Therefore, the creditor should promptly urge the guarantor and keep the evidence of the delivery.

Q4: Is the guarantor still liable for the extension of the main debt?

It depends on the circumstances. If the main contract is amended to increase the debt without the guarantor's written consent, the guarantor shall not bear the guarantee responsibility for the increased part; if the performance period is extended without consent, the guarantee period will generally not be affected. Therefore, before the extension or major changes, the guarantor's written consent should be obtained and the documents should be kept.

Q5: How to seek compensation after assuming the guarantee responsibility?

After the guarantor assumes the guarantee responsibility, he/she has the right to recover the debt from the debtor within the scope of his/her responsibility, and may claim the corresponding interest and necessary expenses. It is recommended to sort out the payment receipts in time and claim from the debtor; if the debtor fails to perform his/her obligations, the guarantor may file a lawsuit according to law and apply for enforcement after winning the case.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm for specific cases.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →\nLegal services for creditor-debtor disputes·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In case of disputes, please consult a practicing lawyer in time.