[Direct answer]In the Beijing area, there are clear differences in the form of liability and the application of rules between the two. The basis for debt joining is Article 552 of the Civil Code of the People's Republic of China (effective January 1, 2021): Where a third party agrees to join the debt with the debtor and notifies the creditor, or where the third party expresses willingness to join the debt to the creditor and the creditor does not expressly refuse within a reasonable period, the creditor may request the third party to bear joint and several liability with the debtor within the scope of the debt the third party is willing to assume. Guarantee, on the other hand, is governed by Article 608, which refers to a contract where the guarantor and the creditor agree that if the debtor fails to perform the due obligation or if the circumstances agreed upon by the parties occur, the guarantor shall perform the obligation or bear the liability. The main differences are as follows: First, the form of liability is different. In debt joining, the debt joiner and the debtor bear joint and several liability, and their status is closer to that of a joint debtor; in guarantee, according to Article 606, if the parties do not stipulate the form of guarantee or the stipulation is unclear, the guarantor shall bear the liability in accordance with the general guarantee, and the general guarantor enjoys the right of prior defense. Second, the rules on time periods are different. Guarantee has a guarantee period. According to Article 609, the parties may stipulate a guarantee period, and if no stipulation is made, the guarantee period shall be six months from the date of expiration of the main contract; debt joining generally does not apply the rules on guarantee periods. Third, the subordinate nature is different. The guarantee debt is subordinate, and the guarantee is generally invalid if the main contract is invalid; debt joining has relatively stronger independence. Fourth, the form and evidentiary requirements are different. Guarantee should generally be in writing, while debt joining requires a clear expression of intent.Creditor's rights and debts, and enforcement casesYou can view similar questions in this column.

1. Problem background and typical scenarios

When parties encounter this distinction problem, it usually stems from several situations: First, the third party promises in writing to repay the debtor, but the document's wording is vague, containing both a promise to repay and a guarantee clause, making it difficult to determine whether it is a guarantee or a joint and several liability; Second, the creditor hopes that the third party will assume more direct responsibility, but the other party only agrees to provide a general guarantee; Third, the main debt contract has a defect in its validity, and the parties are concerned about whether the third party's liability will be invalidated accordingly; Fourth, the creditor fails to assert rights against the guarantor within the guarantee period and later discovers that the guarantee liability has been extinguished; Fifth, the third party verbally promises to repay but fails to sign a written document and later denies it. When handling such cases in the Beijing area, the court usually combines the meaning of the document, the purpose of its conclusion, and the relationship of interests to make a comprehensive judgment. The accuracy of the wording often directly determines the direction of liability determination. For issues involving the guarantor recovering the debt from the debtor after assuming liability, reference can also be made to this judgment.Business and contract disputes in enterprisesColumn.

II. Key points of dispute

Focus One: To determine whether the party's intention is to provide a guarantee or to join the debt, we need to analyze the textual meaning of the document and the specific circumstances. Focus Two: For the determination of the guarantee mode, if there is no agreement or the agreement is unclear, it shall be handled as a general guarantee. Focus Three: For the agreement and starting point of the guarantee period, if there is no agreement, it shall be six months from the date of the expiration of the main debt's performance period. Focus Four: For the general guarantor's right of defense in litigation, it can only be claimed when the debtor's property is still unable to be enforced after the forced execution. Focus Five: For the differences in liability when the main contract is invalid or revoked. Focus Six: For the scope and limits of debt joining, the third party shall only bear liability within the scope they are willing to assume. Focus Seven: For the time and method of the creditor's claim of rights, whether the request is made in an appropriate manner within the guarantee period. The specific determination shall be based on the currently effective laws, regulations, and judicial rulings.

III. Professional analysis by Henglue Lawyers

From the practical experience of lawyers handled by our firm, this distinction directly affects two outcomes in practice: who the creditor can claim against and when the claim must be made. Firstly, in terms of liability form, debt assumption makes the third party a joint and several debtor alongside the debtor, and the creditor can directly request its performance without enjoying the benefit of a prior defense. However, according to Article 686 of the Civil Code of the People's Republic of China, if there is no agreement on the guarantee mode or the agreement is unclear, it shall be handled in accordance with the general guarantee. Before the main contract dispute is adjudicated or arbitrated and the debtor's property is still unable to fulfill the debt through legal enforcement, the general guarantor has the right to refuse to assume guarantee liability to the creditor, which is the right of prior defense. Secondly, in terms of time limits, according to Article 692, the guarantee period shall be agreed upon by the parties. If no agreement is made, it shall be six months from the date of expiration of the main debtor's performance period. If the creditor fails to assert rights within the guarantee period in accordance with the law, the guarantor shall no longer bear guarantee liability. Debt assumption is generally not subject to this time limit, and the creditor can apply the ordinary statute of limitations to the joinee. Thirdly, in terms of document interpretation, the court usually examines whether the third party has the intention to independently and directly bear the debt. If the statement is that it is willing to bear the debt together with the debtor and directly perform to the creditor, it tends to be identified as debt assumption; if the statement is that it will bear the guarantee liability when the debtor is unable to perform, it tends to be identified as guarantee. Therefore, whether from the perspective of the creditor or the third party, it is necessary to clarify the intention of the parties when signing the contract to avoid future disputes over interpretation. For the creditor, if he wishes to obtain stronger liability protection, it is advisable to explicitly stipulate debt assumption or joint and several guarantee; for the third party, if he wishes to retain the protection of prior defense and guarantee period, he should clearly stipulate the guarantee words, guarantee mode and period in the document.

IV. Practical suggestions and legal basis

Action suggestions: First, when signing the contract, it is necessary to clearly state its legal nature, directly using terms such as "debt assumption" or "guarantee", and specify the scope of responsibilities and the method of assuming them. For reference on the review of relevant contracts, please refer to the following content.Business and contract disputes in enterprisesFirst, if the creditor wishes to strengthen the guarantee, they may stipulate joint and several liability or explicitly include the debtor as a guarantor, and simultaneously stipulate the guarantee period. Second, if a third party provides a guarantee for others, they should clearly stipulate the guarantee method and guarantee period to avoid assuming heavier responsibilities beyond the general guarantee due to unclear agreements. Third, if the creditor asserts their rights in a timely manner within the guarantee period through written means, litigation, or arbitration, and retains the delivery receipt, they can continue to monitor the subsequent enforcement process.Creditor's rights and debts, and enforcement cases1. Column; 2. If the main contract has legal defects, evaluate the impact on the guarantee obligation in a timely manner; 3. Oral promises are difficult to prove. Any guarantee intention should be formalized in a written document and signed by the guarantor. 4. Legal basis: Articles 502, 601, 606, 609, and 700 of the Civil Code of the People's Republic of China (effective January 1, 2021); 5. Specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

Firstly, the core difference between debt assumption and guarantee lies in the form of liability and the rules regarding the time period, which cannot be confused with each other. Secondly, if the guarantee mode is not clearly stipulated, it shall be handled in accordance with the general guarantee, and the guarantor enjoys the right of prior litigation defense. Thirdly, the guarantee period is a crucial deadline. If the creditor fails to assert rights against the guarantor within the time period, they may lose the guarantee liability. Fourthly, the handling of guarantee liability when the main contract is invalid is different from debt assumption, and it needs to be judged based on the specific circumstances. Fifthly, the wording of the document directly affects the determination of liability, and professional personnel should review it when signing the contract. Sixthly, the way and timing of the creditor's assertion of rights are equally important. It is recommended to submit a request in writing and keep evidence within the time period.

VI. Frequently Asked Questions

Q1: What is the essential difference between debt assumption and guarantee?

The assumption of debt is when a third party directly joins the debt and bears joint and several liability with the debtor, making them more akin to co-debtors. Guarantees, on the other hand, are subordinate in nature, distinguishing between general guarantees and guarantees with joint and several liability, and applying rules such as the guarantee period and the right of defense against prior litigation.

Q2: What should I do if there's no agreement on the guarantee method?

According to Article 686 of the Civil Code of the People's Republic of China, if the parties have not agreed on the guarantee method or the agreement is unclear, the guarantor shall bear the guarantee liability in accordance with the general guarantee, and the guarantor shall enjoy the right of prior defense.

Q3: How long is the warranty period usually?

According to Article 692 of the Civil Code of the People's Republic of China, the guarantee period shall be agreed upon by the parties; if no agreement is made, it shall be six months from the date of expiration of the main debt performance period. If the creditor fails to assert his rights within the period, the guarantor shall no longer bear the guarantee liability.

Q4: Must the general guarantor sue the debtor first?

In general, before the dispute over the main contract has been tried or arbitrated, and the debtor's property is still unable to fulfill the debt after being enforced by law, the guarantor has the right to refuse to assume the guarantee responsibility to the creditor, which is the right of prior litigation defense.

Q5: Does an oral promise to repay a debt on behalf of someone else count as assuming the debt?

There is a great deal of controversy over this. To join the debt, a clear expression of intent is required. Oral promises are often difficult to prove. It is recommended to prepare a written document and have it signed by a third party, clearly defining the scope of responsibilities and the manner of assuming obligations.

The above content is based on the judicial practice 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 currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, in order to avoid missing the statutory time limit.Legal services for creditor-debtor disputes·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open 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. If you encounter disputes, please consult a practicing lawyer in time.