[Direct answer]In the Beijing area, it is possible to apply to the court for resuming enforcement and directly adjudicate the enforcement of the guarantor's property or the guarantor's property. Article 238 of the Civil Procedure Law of the People's Republic of China (amended in 2021 and implemented on January 1, 2022) stipulates that during enforcement, if the debtor provides a guarantee to the people's court and the applicant for enforcement agrees, the people's court may decide to suspend enforcement and the period of suspension; if the debtor still fails to perform within the time limit, the people's court has the right to enforce the debtor's guaranteed property or the guarantor's property. Article 11 of the Supreme People's Court's Provisions on Several Issues Concerning Enforcement Guarantees (Fa Shi [2018] No. 4, implemented on March 1, 2018) further clarifies that after resuming enforcement, it is possible to directly adjudicate the enforcement of the guarantor's property or the guarantor's property without the need for a separate lawsuit; however, if the application is submitted after the expiration of the guarantee period, the court will not support it (Article 13).

1. Problem background and typical scenarios

During the execution process, the debtor often proposes, "Give me three months' grace period, and I'll find a guarantor." After the applicant for enforcement agrees, the court decides to suspend the execution. However, if the debtor still fails to perform the obligation by the due date, the guarantor may evade responsibility, go missing, or secretly transfer or sell the guarantor's property. There are also situations where a third party signs an enforcement settlement agreement promising to perform the obligation on behalf of the debtor, but later reneges on the promise. At this point, the creditor's greatest concern is: Can they directly enforce against the guarantor, or do they need to file another lawsuit? How long can the guarantor delay the enforcement, and will the statute of limitations expire during the delay?

II. Key points of contention

First, the form of guarantee and the conditions for its establishment. The execution guarantee can be provided by the debtor, by others, or by a guarantor; a guarantee letter must be submitted to the court, specifying the scope of the guarantee, the suspension period of execution, and the guarantee period, and including the guarantor's commitment to voluntarily accept direct enforcement if the debtor fails to perform on time. At the same time, the written consent of the applicant for enforcement must be obtained. Second, the suspension period of execution. The period should be consistent with the provisions of the guarantee letter, but the maximum duration shall not exceed one year; the guarantee period shall be calculated from the date on which the suspension period of execution expires. If the guarantee letter does not contain such provisions or the provisions are unclear, the guarantee period shall be one year. Third, the choice of enforcement path. If the guarantee letter is complete, the court may directly rule to enforce the debtor's property or the guarantor's property after resuming execution, and the guarantor shall not be changed or added as the debtor. If the guarantee commitment is unclear, it is often necessary to separately claim the guarantor's liability. Fourth, the distinction between execution guarantee and execution settlement guarantee. The guarantee in the settlement agreement applies to different rules in applying for resuming execution and the scope of liability. Choosing the wrong claim path may prolong the period.

III. Professional analysis by Henglue Lawyers

The key to whether the execution guarantee can be implemented lies in whether the guarantee letter clearly states "voluntarily accepting direct enforcement" and whether the guarantee period is still valid. These two points are often overlooked by creditors. Henglue Law Firm once handled a case of failed enforcement: Ma * and a company had a dispute over an intermediary contract. The effective judgment ordered the company to return the intermediary service fee of 423,500 yuan. After enforcement, the case was terminated due to no assets available for enforcement. The lawyer then retrieved the industrial and commercial archives and found that the company's shareholders, Liu * and Zhang *, respectively subscribed to a capital of 9 million yuan and 1 million yuan, with a subscription period ending in 2039, but there were no actual payment records. Therefore, the lawyer argued that the company had already met the grounds for bankruptcy but did not apply for bankruptcy, and the shareholders no longer enjoyed the benefits of the subscription period. The lawyer filed a lawsuit against the shareholders for their liability for damaging the company's creditors' interests. The court ordered the two shareholders to bear supplementary compensation liabilities within the scope of the unpaid capital of 9 million yuan and 1 million yuan respectively. This case was handled by Beijing Henglue Law Firm.Yuan HangThe lawyer (practice license number: 11101202110286151, subject to the documents issued by the judicial administrative organ) acts as the agent. This experience is also applicable to situations where the guarantor is unable to make repayments: when the collateral is insufficient or the guarantor has no enforceable property, the responsible parties such as unpaid shareholders, shareholders who have withdrawn their investments, and recipients of property without compensation should be investigated simultaneously.Executing the caseIt is more meaningful to locate all the liable assets in China than to repeatedly urge the single guarantor to pay off the debt.

IV. Practical suggestions and legal basis

According to Article 238 of the Civil Procedure Law of the People's Republic of China (amended in 2021 and implemented on January 1, 2022), and Articles 2 to 4, Article 6, and Articles 10 to 13 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Enforcement of Guarantees" (interpretation of laws No. 4 of 2018, implemented on March 1, 2018), it is recommended that: First, before agreeing to suspend enforcement, review the guarantee letter to confirm that the guarantor's identity, the guaranteed property, the scope of the guarantee, the guarantee period, and the commitment to "voluntarily accept direct enforcement" are all complete. For companies providing guarantees, the company's articles of association and board of directors or shareholders' resolutions should also be submitted. Second, regularly check the status of the guaranteed property during the suspension period. If there are signs of transfer, concealment, sale, or damage, immediately apply for resumption of enforcement. Third, if the enforced party still fails to perform after the expiration of the time limit, apply in writing for resumption of enforcement and request direct enforcement of the guaranteed property or the guarantor's property, attaching the guarantee letter, the effective legal document, and evidence of non-performance. Fourth, it is essential to file a claim within the guarantee period. After the expiration of the period, the court will not support any applications. Fifth, if the value of the guaranteed property is insufficient, evaluate the feasibility of adding other liable parties.

5. Henglue Law Firm's Reminder

The essence of guarantee execution is essentially a concession made by the applicant for enforcement, and such concession must be exchanged for definite protection. There are three common pitfalls: writing the guarantee with vague expressions such as "willing to assist in solving the problem", which makes it impossible to enforce directly afterwards; setting the guarantee period as one year but taking no action during the entire suspension period, resulting in the loss of rights after the expiration; only focusing on the verbal commitment of the guarantor without verifying their actual assets such as real estate, equity, and vehicles. It should also be noted that after assuming guarantee responsibility, the guarantor has the right to recover compensation from the debtor, so the guarantor also has room for protection and can design repayment arrangements based on this in the negotiation. For matters involving the disposal of guarantee assets, the investigation and control of the guarantor's assets, and the addition of other responsible parties, it is recommended to coordinate them together in the enforcement process.Beijing Henglue Law FirmTip: Every day of delayed execution consumes time value, and it's just as important to design the terms and track the progress.

VI. Frequently Asked Questions

Q1: Is there a high chance of the guarantor's application for direct enforcement being approved?

If the guarantee letter meets all the requirements, is still within the guarantee period, and the person subject to enforcement fails to perform his obligations, the court is more likely to support the direct enforcement of the guarantor's property or the property subject to the guarantee; if the guarantee commitment is vague or the guarantee period has expired, it is usually difficult to enforce it directly.

Q2: What evidence do I need to prepare?

The execution guarantee letter and its copy, the proof of delivery of the application for execution, the written consent materials of the applicant for execution, the effective legal documents and the execution case number, the evidence of the debtor's failure to perform the obligation within the time limit, the clues to the guarantor's property, and the relevant materials of the guarantor's transfer of property.

Q3: How much does this part cost?

Applications for resuming enforcement generally do not incur additional application fees. The costs related to the evaluation of the guaranteed property and the auction will be deducted from the enforcement funds. If it is necessary to file a separate lawsuit to claim the guarantee liability, the litigation fees will be calculated in accordance with the amount of the claim.

Q4: How long will it take to see the results?

The maximum period of suspension of enforcement shall not exceed one year, and the review of resuming enforcement is usually completed within a few weeks; for auctions of secured property, it often takes about half a year from the evaluation to the sale of the property.

Q5: What should I do first?

First, check whether the content of the guarantee letter and the guarantee period have expired, confirm the current status of the guaranteed property, and then submit a written application to the enforcement court to resume the enforcement and directly enforce the guaranteed property.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the adjudicative guidelines in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

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 Yuan Hang·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. If you encounter disputes, please consult a practicing lawyer in time.