[Direct answer]In the Beijing area, if there is no agreement on the guarantee method in the promissory note, the guarantor is still liable, but he shall bear responsibility in accordance with the general guarantee. According to Article 686 of the Civil Code of the People's Republic of China (effective January 1, 2021), if the parties do not stipulate or stipulate unclear guarantee methods in the guarantee contract, they shall bear guarantee responsibilities in accordance with the general guarantee. The general guarantor enjoys the right of prior defense (Article 687): before the dispute over the main contract is tried or arbitrated, and the debtor's property is still unable to perform the debt after being enforced by law, he has the right to refuse to bear guarantee responsibilities to the creditor. This is a distinct difference from the joint and several liability guarantee (Article 688), where the creditor can directly request the guarantor to bear responsibilities. For more details, please refer to the following link:Legal services for creditor-debtor relations and enforcement cases.

1. Problem background and typical scenarios

In private lending, when a third party signs a guarantee on the promissory note out of courtesy, most promissory notes only write the words "guarantor", without specifying whether it is a general guarantee or a joint and several liability guarantee. The lender assumes that whoever signs the promissory note will be sued directly when the due date arrives; the guarantor, however, thinks that he is just helping his friend out of face. The rules have changed: after the implementation of the Civil Code on January 1, 2021, if the guarantee mode is not specified in the contract, the guarantor is presumed to bear responsibility according to the general guarantee, and the guarantor thereby obtains the right of first-claim defense. Under the previous rules, many parties still adhered to the old practices regarding the guarantee mode. How to determine the guarantee mode, how the creditor sues, and how the guarantor defends have become frequent disputes, and the relevant rules can be referred to for further understanding.Legal services for creditor-debtor relations and enforcement casesGot it.

II. Key points of contention

The controversy focuses on four points. Firstly, the determination of the guarantee mode: when the agreement is unclear, it is presumed to be a general guarantee according to Article 686 of the Civil Code, which is the basic premise of the judgment. Secondly, the order of liability: the general guarantor enjoys the right of first-instance defense, and the creditor must first claim rights from the debtor and still cannot be compensated after forced execution; there is no such order restriction for joint and several liability guarantees. Thirdly, the loss of the right of first-instance defense: when the debtor's whereabouts are unknown and there are no assets available for execution, or when the People's Court accepts the debtor's bankruptcy case, etc., the guarantor may no longer refuse to assume responsibility. Fourthly, the impact of litigation strategies: whether the creditor sues the debtor and the guarantor together or claims separately directly affects the jurisdiction, the scope of trial, and the enforcement arrangements.

III. Professional analysis by Henglue Lawyers

A civil loan dispute handled by Attorney Tian Jiaoyan can be used as a reference. Liu * and Li * were friends. Since the beginning of 2022, Li * borrowed money from Liu * multiple times, citing reasons such as opening a pet store and paying rent. Liu * lent a total of 662,000 yuan to Li * through bank transfers, Alipay, and WeChat. On November 3, 2024, the two parties signed a loan agreement, stipulating that Li * would repay the full amount of 662,000 yuan by January 1, 2025, and would bear litigation fees, attorney's fees, transportation fees, and preservation guarantee fees if the repayment was overdue. On November 26, 2024, Li * explicitly stated that he would be unable to repay the loan when it matured, and after unsuccessful negotiations, Liu * entrusted Attorney Tian Jiaoyan to handle the case. Attorney Tian Jiaoyan comprehensively reviewed the bank, Alipay, and WeChat transfer records and compared them with the loan agreement to confirm the legality and validity of the loan relationship. Based on the provisions of the Civil Code on breach of contract liability, she determined that Li * should bear the principal and overdue interest, and assessed that the enforcement period after the judgment would be long and the asset clues difficult to find, making mediation a better option. After communicating with Liu *, she reduced the amount and extended the repayment period appropriately, but insisted on setting strict breach of contract clauses. During the court mediation, she presented a complete chain of evidence, ultimately confirming repayment in two installments (400,000 yuan by December 10, 2025, and 80,000 yuan by February 10, 2026). If the full amount was not paid on time, Liu * would have the right to demand payment of the remaining principal and attorney's fees totaling 712,000 yuan according to the original agreement. The court issued a Civil Mediation Agreement to confirm the settlement. This case was handled by Beijing Henglu Law Firm.Tian JiayanThe lawyer (practice license number: 11101202111381309, subject to the document issued by the judicial administrative organ) acts as an agent. In this case, the lender and the borrower are not involved in any guarantee. However, if there are third-party signatures on the promissory note and the guarantee method is not clearly defined, it shall be handled as a general guarantee according to Article 686 of the Civil Code. Therefore, the lender's strategy of suing the guarantor directly without going through the debtor will be difficult to succeed.

IV. Practical suggestions and legal basis

The legal basis includes Article 686 of the Civil Code of the People's Republic of China (effective January 1, 2021), which stipulates that the guarantee mode includes general guarantee and joint and several liability guarantee. If the agreement is unclear or absent, the guarantor shall bear the guarantee liability in accordance with the general guarantee mode; Article 687, which stipulates the relationship between general guarantee and the right of prior defense and the circumstances of its loss; Article 688, which stipulates the joint and several liability guarantee; and Article 692, which stipulates that if there is no guarantee period or the guarantee period is unclear, the guarantee period shall be six months from the date of the expiration of the main debtor's performance period. Action list: When the creditor lends money, he/she shall specify the joint and several liability guarantee in writing and clarify the scope and period of the guarantee to avoid the responsibility being shifted due to unclear agreement; the guarantor shall verify the guarantee mode and period before signing the agreement and make good use of the right of prior defense; after the debt is overdue, the creditor shall first fix the debtor's property clues and promptly sue and apply for enforcement; the guarantor shall simultaneously review whether the guarantee period has passed. For more details, please refer to the relevant provisions of the Civil Code of the People's Republic of China.Legal services for creditor-debtor relations and enforcement cases.

5. Henglu Law Firm's Advice

Generally, a guarantee does not mean that the debtor does not have to repay the loan, but that the liability rank is lower. The right of first-instance defense is not a protective shield, and once the statutory circumstances arise, it will be extinguished. The guarantee period is also crucial: if no guarantee period is stipulated, the guarantee period shall expire six months after the expiration of the autonomous debt performance period. If the creditor fails to claim the debt in accordance with the law, the guarantor shall no longer bear the liability. When handling similar cases in the Beijing area, Henglue Law Firm advises the lender and the borrower to put the guarantee method, scope and period on paper to reduce the litigation burden caused by unclear agreements. For specific solutions, please consult us.Beijing Henglu Law Firm.

VI. Frequently Asked Questions

Q1: If the promissory note doesn't specify the guarantee method, can the guarantor be exempt from liability?

It's not that the guarantor can simply be exempted from liability, but that the responsibility shifts to a lower level. According to Article 686 of the Civil Code, if the agreement is unclear, the guarantor shall bear liability according to the general guarantee, and the guarantor enjoys the right of first-claim defense. If the creditor fails to assert his rights in accordance with the law within the guarantee period, or there are circumstances such as the extinction of the main debt, the guarantor may no longer bear liability according to law. The conclusion of the case shall be based on the evidence and the court's determination, and it is necessary to judge according to the specific meaning of the IOU.

Q2: What evidence should be prepared for such disputes?

The original copy of the IOU and guarantee terms, proof of payment for each sum, records of debt maturity and debt collection, and proof of rights asserted during the guarantee period; the guarantor may submit evidence such as the location of the signature and negotiation records. Whether the amount of the creditor's claim and the guarantee method and period are clearly defined directly determines the litigation strategy and defense space. The evidence should be organized into a chronological chain.

Q3: How much does it cost to litigate a case?

The acceptance fee shall be paid in stages according to the amount of the request, and the successful party shall share the fee proportionally; applying for property preservation requires providing a guarantee and paying the preservation fee; the attorney's fee shall be determined through consultation between the client and the law firm. It should be noted that if the creditor fails to assert his rights within the guarantee period in accordance with the law, he may face the risk that his request will not be supported. Therefore, the creditor should verify the guarantee period before incurring any costs.

Q4: How long will the whole process take?

Under the general guarantee, the creditor usually needs to go through a trial or arbitration and apply for the forced execution of the debtor's property, which takes longer than the joint and several liability guarantee. The first-instance ordinary procedure takes six months, the summary procedure takes three months, and the execution stage depends on the progress of the property disposal. If no guarantee period is agreed upon, the six-month guarantee period shall start first, and the creditor will lose the right to claim if he fails to do so within the time limit.

Q5: How to avoid ambiguous agreements when lending money?

Three tips: First, specify the guarantee method in writing. Lenders should typically clarify the joint and several liability guarantee; Second, clearly state the scope of the guarantee, the start and end dates of the guarantee period, and the maximum amount; Third, have the guarantor sign and confirm the guarantee terms separately. If the agreement is unclear, consult a lawyer as soon as possible to verify the guarantee period and defense space, and then decide whether to negotiate, supplement the agreement, or initiate litigation.

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 relevant evidence, to avoid missing the statutory time limit. →Legal services for creditor-debtor disputes·Attorney He Ningning·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.