[Direct answer]In private lending, if there is a guarantor, the lender may, in accordance with the guarantee contract, require the guarantor to assume the repayment responsibility within the scope of his guarantee. According to Articles 681 and 686 of the Civil Code of the People's Republic of China (effective from January 1, 2021), the guarantee is divided into general guarantee and joint and several liability guarantee. If the agreement is unclear, it shall be deemed as a general guarantee. The creditor shall assert his rights through litigation or arbitration within the guarantee period, otherwise the guarantee responsibility will be extinguished. Beijing Henglu Law FirmAttorney Tian JiayanI have handled loan disputes before. By perfecting the evidence chain and strictly enforcing the default clauses, we were able to secure the creditor's rights, demonstrating that the creditor's rights can be legally enforced. In cases involving guarantors, we can also recover the debt according to the contract. It is recommended to sign a written guarantee clause and seek legal advice beforehandLegal services for creditor-debtor disputesFor more details, please refer to the following link:Beijing Henglu Law Firm.

I. Legal basis and interpretation of provisions

1. Article 686 of the Civil Code of the People's Republic of China (effective as of January 1, 2021)

The methods of guarantee stipulated in this article include general guarantee and joint and several liability guarantee. If the parties do not stipulate or stipulate unclear guarantee methods in the guarantee contract, they shall bear the guarantee liability in accordance with the general guarantee. General guarantors enjoy the right of prior defense, while joint and several liability guarantors have no such restrictions. Creditors can directly request them to bear the guarantee liability. The clear guarantee methods directly determine the path and difficulty of creditors claiming rights from guarantors.

2. Article 692 of the Civil Code of the People's Republic of China (effective as of January 1, 2021)

The provision stipulates that the guarantee period is the period during which the guarantor assumes guarantee liability, without suspension, interruption, or extension. The creditor and the guarantor may agree on the guarantee period; if no agreement is reached, the guarantee period shall be six months from the date of expiration of the main debt performance period. The creditor must assert his rights in accordance with the law within this period, otherwise the guarantee liability will be extinguished, which is the most common ground for the guarantor to be exempt from liability.

3. Practical adjudication guidelines

In practice, the court reviews three key points: whether the guarantee method is clear, whether the guarantee period has expired, and whether the creditor has asserted his rights within the timeframe. Generally, the guarantor can assert the right of first-action defense and demand that the borrower's property be executed first; the joint and several liability guarantor must bear direct responsibility. If the main contract is amended without the guarantor's written consent, it does not affect the original guarantee period. When the creditor sues, the guarantor and the borrower should be listed as defendants together to avoid the guarantor's liability being evaded, and this is also related to the subsequent enforcement of the judgment against the borrower.Business contract disputesThe review of the terms and conditions.

II. Henglue Lawyer's Real Cases (Detailed Review)

Review of the case:The plaintiff, Liu * and the defendant, Li * were originally friends. Since the beginning of 2022, Li * borrowed money from Liu * multiple times on the grounds of opening a pet store and paying rent, etc. 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 all 662,000 yuan by January 1, 2025, and would voluntarily bear the litigation fees and attorney's fees if the repayment was overdue. On November 26, 2024, Li * explicitly stated that he would be unable to repay the loan after the due date. After unsuccessful negotiations, Liu * entrusted Beijing Henglu Law Firm to handle the case.Tian JiayanThe lawyer got involved.

The focus of the controversy:First, the validity of the loan relationship and the chain of evidence. It is necessary to build a complete chain of evidence with promissory notes and transfer records. Second, the determination of breach of contract liability. The borrower shall bear the principal, overdue interest, and attorney's fees if the loan is overdue. Third, the priority of mediation and the design of breach of contract clauses to lock in the bottom line for the realization of creditor's rights.

Our position and that of the other party are as follows:Liu * requested that Li * repay 662,000 yuan as agreed and bear the overdue interest and attorney's fees, etc. Li * admitted the fact of the loan, but explicitly stated that he was unable to repay the loan in full upon maturity and hoped to extend the repayment period.

Attorney's Strategy and Legal Opinions:After accepting the case, Attorney Tian Jiaoyan verified the client's needs and pointed out that it was necessary to provide the loan agreement corresponding to the WeChat transfer and complete records of debt collection. She comprehensively organized the bank, Alipay, and WeChat transfer records and compared them with the loan agreement item by item to confirm that the loan relationship was legal and valid. Based on the Civil Code, she concluded that Li * should bear the principal and overdue interest if he breached the contract. After assessment, she believed that the enforcement period after the judgment would be long and it would be difficult to find property clues, so mediation would be a better option. Through communication, the client agreed to reduce the amount and extend the time limit appropriately, but insisted on setting strict breach of contract clauses.

The court's reasoning and the outcome of the case:After the court-mediated negotiation, the two parties voluntarily reached an agreement: Li * would repay the loan in two installments, paying 400,000 yuan before December 10, 2025, and 80,000 yuan before February 10, 2026; the breach of contract guarantee clause stipulates that if the full repayment is not made on time, Liu * has the right to require Li * to immediately pay all the remaining principal and attorney's fees of 712,000 yuan according to the original loan agreement. The court issued a civil mediation letter confirming that it provides a dual guarantee of installment repayment and breach of contract punishment for the plaintiff to realize his creditor's rights.

This case is handled by Beijing Henglu Law Firm.Tian JiayanThe attorney (practice certificate number: 11101202111381309, subject to the certificate issued by the judicial administrative organ) acts as the agent.

III. Frequently Asked Questions

Q1: If the promissory note mentions a guarantor, can he just walk away and avoid his responsibilities?

It's not easy to evade responsibility, but it depends on the guarantee method and the guarantee period. Generally, the guarantor has the right of prior litigation defense, and the joint and several liability guarantor must bear direct responsibility; if the creditor fails to sue or arbitrate within the guarantee period (unless otherwise agreed to be six months), the guarantee obligation will be extinguished. When signing the contract, the guarantee method should be clearly specified, and claims should be raised in a timely manner within the period to prevent the guarantor from being exempted from liability according to law.

Q2: Did you not specify whether the guarantee method is joint and several or ordinary?

According to the general guarantee. According to Article 686 of the Civil Code, if the parties do not stipulate or stipulate the guarantee mode in the guarantee contract in an unclear manner, they shall bear the guarantee liability in accordance with the general guarantee. This means that the creditor must first enforce the debtor's property according to law and still fail to perform the obligation before he can request the general guarantor to bear the responsibility, and the claim path is different from that of joint and several liability.

Q3: Do I still need to bear responsibility after the warranty period has passed?

No. If there is no agreed guarantee period, it shall be six months from the date of expiration of the main debtor's performance period; if the creditor fails to exercise his rights against the debtor through litigation or arbitration within this period, the guarantee obligation shall be extinguished. It is particularly important to verify the guarantee period in guarantee-related cases. If the guarantor fails to claim within the time limit, he shall no longer bear legal responsibility, and the creditor should take action as soon as possible.

Q4: If the main contract is amended without the guarantor's consent, is the guarantor still liable for the obligations?

No worries. According to Article 695 of the Civil Code, if the creditor and the debtor modify the content of the main contract or reduce the debt without the written consent of the guarantor, the guarantor shall be liable for the reduced debt; if the debt is increased, the guarantor shall not be liable for the increased part; and the modification shall not affect the original guarantee period. The guarantor can use this as a defense to avoid being held accountable for an expanded liability.

Q5: If the borrower doesn't have the money, can they still ask the guarantor for it?

Yes, but the procedures vary depending on the type of guarantee. For joint and several guarantees, the guarantor can be directly required to repay the debt; for general guarantees, the guarantor can only be held liable after the borrower's assets have been exhausted. When filing a lawsuit, it is recommended to list both the borrower and the guarantor as defendants, and to assert claims within the guarantee period to ensure that the creditor can recover the debt from the guarantor.

IV. Advice on Protecting Your Rights

  • When borrowing money, it is required that the guarantor provide a written guarantee, clearly stating the guarantee method and guarantee period, to avoid unclear agreements being treated as general guarantees.
  • During the guarantee period, initiate legal proceedings or arbitration in a timely manner, and list the guarantor and the borrower as defendants together.
  • The changes to the interest rate and term of the main contract shall be subject to the written consent of the guarantor to prevent the guarantor from partially evading liability.
  • When the borrower is unable to repay the loan, it is advisable to entrust a lawyer to verify the guarantee terms as soon as possible and seek recovery from the guarantor in accordance with the law.

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