[Direct answer]In the Beijing area, the core difference between general guarantee and joint and several liability guarantee generally lies in whether the guarantor enjoys the right of prior litigation defense. According to Article 687 of the Civil Code of the People's Republic of China (effective January 1, 2021), the guarantor of a general guarantee has the right to refuse to assume guarantee responsibility before the main contract dispute is adjudicated or arbitrated and the debtor's property is still unable to be enforced according to law; while in the case of joint and several liability guarantee, if the debtor fails to perform the due obligation, the creditor can directly require the guarantor to assume guarantee responsibility within the scope of his guarantee. The key to the distinction lies in whether the guarantee contract explicitly stipulates it. If it is not stipulated, it shall be presumed as a general guarantee according to the Civil Code. It is recommended to specify the mode of guarantee when signing the contract and to refer to it when necessary.Creditor's rights and debts, and enforcement casesColumn.

I. Problem background and typical scenarios

The confusion about the form of guarantee is common in the following situations: First, private loan agreements only list the guarantors but fail to specify the form of guarantee, leading to disputes afterwards; Second, enterprises use general terms such as "guarantee" in their mutual guarantee and joint guarantee agreements; Third, financial institutions often directly stipulate joint and several liability in their standard contracts, while borrowers fail to pay attention to it; Fourth, in sales contracts and construction projects, when a third party provides a guarantee, the form of guarantee is not clearly defined; Fifth, when the guarantee period overlaps with the statute of limitations, the creditor misses the opportunity to assert their rights. When handling similar cases in the Beijing area, the court strictly determines the form of guarantee according to the provisions and presumption rules, and the relevant contracts can be referred to for reference.Business and contract disputes in enterprisesColumn.

II. Key points of contention

First focus: Whether there is a right of defense against a lawsuit. General guarantors have this right, while joint and several guarantors do not. Second focus: The order of creditor's claims. General guarantors must first sue the debtor and enforce the judgment if it is unsuccessful, while joint and several guarantors can directly seek compensation from the guarantors. Third focus: Presumption in the event of unclear agreements. After the implementation of the Civil Code, it is presumed that the guarantor provides general guarantees. Fourth focus: The commencement of the guarantee period and the statute of limitations differ. Fifth focus: The internal shares of joint guarantees. Specific determinations shall be based on the currently effective laws, regulations, and judicial rulings.

III. Professional analysis by Henglue Lawyers

From the practical experience of the lawyers handled by our firm, most disputes fail due to unclear agreements and missed key points. A common misunderstanding is that creditors mistakenly believe they can directly pursue claims against guarantors, when in fact, general guarantees must first exhaust all enforcement measures against the debtor. Another misconception is that the guarantee period is implicitly unlimited, when in fact, if no specific provisions are made, the period is six months after the expiration of the principal debt. Beyond this period, the guarantor is exempt from liability. Our lawyers suggest that creditors clearly stipulate joint and several liability and specify the scope and duration of the guarantee when signing contracts, while debtors should pay attention to the pre-litigation protection of general guarantees. For contract review matters, you may refer to the following for reference:Business and contract disputes in enterprisesColumn; when it comes to executing on the guarantor's property, you can refer to it for reference.Special services and other casesColumn.

IV. Practical suggestions and legal basis

Action suggestions: First, when signing the contract, it is necessary to clarify the guarantee mode in writing. Creditors should strive for joint and several liability, and guarantors should strive for general guarantees with limited scope; Second, specify the guarantee period and guarantee scope to avoid being presumed as general guarantees or with an excessively short period; Third, creditors should assert their rights within the guarantee period. For joint guarantees, they can directly demand repayment from the guarantors, while for general guarantees, they must first sue the debtors; Fourth, preserve the evidence of collection and litigation to interrupt the statute of limitations; Fifth, after the guarantors make repayments, they should promptly recover the debts from the debtors. For related operations, please refer to the relevant guidelines.Creditor's rights and debts, and enforcement casesColumn. In terms of legal basis, Article 686 of the Civil Code of the People's Republic of China defines the mode of guarantee, Articles 687 and 688 respectively stipulate general guarantee and joint and several liability guarantee, and Article 692 establishes the rules of the guarantee period.

5. Henglu Law Firm's Reminder

Risk Warning: Firstly, if there is no agreement or an unclear agreement, it will be presumed as a general guarantee, and the creditor cannot directly approach the guarantor; Secondly, the guarantee period is short and easy to expire, and the guarantor will be exempt from liability after the expiration; Thirdly, although the joint and several guarantee can be directly pursued, it must be claimed within the guarantee period; Fourthly, after the guarantor makes compensation, he/she enjoys the right of recourse and should keep the relevant evidence. It is recommended to clarify the method of guarantee at the time of signing the contract and refer to it when necessary.Creditor's rights and debts, and enforcement casesThe column is reviewed by professional lawyers to ensure the accuracy of the clauses and claims.

VI. Frequently Asked Questions

Q1: What's the difference between a general guarantee and a joint and several guarantee?

The difference lies in whether the guarantor enjoys the right of prior litigation defense. In a general guarantee, the guarantor has the right to claim to first execute the debtor's property and only bear responsibility if it still cannot be repaid; in a joint and several liability guarantee, if the debt is not performed upon maturity, the creditor can directly require the guarantor to make compensation on behalf of the debtor. After the implementation of the Civil Code, if the agreement is unclear, it is presumed to be a general guarantee, so the written clear method is crucial. If the creditor wants stronger protection, they should stipulate joint and several liability; if the guarantor wants to leave a buffer, they should specify general guarantee and set limits on the scope of liability.

Q2: What evidence do I need to prepare to prove the warranty liability?

The following items should be prepared: First, the main contract and the guarantee contract, which prove the creditor's rights and the guarantee method; Second, evidence of the debtor's failure to perform the obligation upon its maturity, such as collection notices and default certificates; Third, in the case of general guarantee, a ruling that the debtor is still unable to make repayment after enforcement; Fourth, evidence of the guarantee period and collection notices, which prove that the time limit has not been exceeded; Fifth, written records of claims for indemnification or joint and several liability. Only when all the evidence is complete can the guarantor's liability be effectively determined.

Q3: How much does it cost to make a guarantor bear responsibility?

If the dispute can be resolved through negotiation, there are usually no litigation costs. If a guarantor is sued, the attorney's fees are negotiated based on the subject matter and complexity of the case, and the litigation fees are charged in stages according to the amount of the claim, with the losing party bearing the costs. General guarantees typically require suing the debtor first and then enforcing against the guarantor, which involves higher procedural costs; joint and several guarantees allow direct litigation against the guarantor, which is relatively quicker. Specifically, the assessment should be based on the type of guarantee and the amount of the subject matter. It is recommended to consult on the evidence first before making a decision.

Q4: How long does it usually take to resolve disputes over warranty liability?

In the case of joint and several guarantees, the guarantor can be sued directly. The first-instance ordinary procedure generally takes no more than six months, and the second-instance procedure takes about three months. For general guarantees, the creditor must first initiate a trial and enforcement against the debtor, but if the debt still cannot be repaid, the overall cycle will be longer, often exceeding one year. The guarantee period is short, and the guarantor will be exempt from liability if the time limit is exceeded. Therefore, it is advisable to assert claims as early as possible. The key lies in clarifying the contractual terms and asserting claims in a timely manner within the guarantee period to avoid missing key points that may lead to exemption from liability.

Q5: What should I pay attention to when signing a guarantee contract?

The first step is to clearly state the general guarantee or joint and several liability guarantee to avoid adverse presumptions; the second step is to agree on the scope of the guarantee and the guarantee period, and not to leave any blank spaces; the third step is for the creditor to strive for joint and several liability and shorten the claim process, and for the guarantor to strive for a general guarantee and set a cap on the scope of the guarantee; the fourth step is to retain the contract and collection receipts to interrupt the statute of limitations; the fifth step is for the guarantor to make prompt recoveries after compensating for the debt and to keep relevant evidence. For contract review, you can refer to the Enterprise Commercial and Contract Disputes section.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify regional differences.

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 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.