[Direct answer]In the Beijing area, when there are more than two guarantors for the same debt, the allocation of guarantee responsibilities shall first be determined by the agreement. If the guarantee contract clearly stipulates the guarantee shares of each guarantor, the responsibilities shall be allocated according to the agreed shares; if no guarantee shares are stipulated, they shall be presumed to be joint and several guarantees according to Article 699 of the Civil Code of the People's Republic of China, and the creditor may request any one of the guarantors to bear all responsibilities within their guarantee scope. The guarantors who have already assumed guarantee responsibilities have the right to recover from other guarantors the part exceeding their allocated shares, in accordance with Article 700 of the Civil Code. Therefore, whether "they can assume less responsibility" depends on whether there are share stipulations and internal recovery arrangements. It is recommended to specify the shares when signing the contract, fix the guarantee contract and compensation certificates after disputes arise, and consult professional lawyers when necessary. For more details, please refer to the following link:Creditor-debtor relations and enforcement case services.

1. Problem background and typical scenarios

Many guarantors provide guarantees for the same debt, which is common in corporate joint guarantee loans, natural persons' mutual guarantees, supply chain finance, and large-scale loans between relatives and friends. Typical scenarios include: banks requiring borrowers to provide more than two guarantors, but the contract only states "joint and several guarantee liability" without specifying the proportion of liability; one spouse signs the contract while the other is nominally a co-guarantor; and when some guarantors go missing or become bankrupt, the creditor turns to those with repayment ability to recover the full amount of the debt. Many guarantors only focus on "helping a friend out" when signing the contract, failing to realize that they may have to bear the full debt. It's not until they are sued that they realize the lack of a clear liability apportionment agreement. Such disputes involve both contractual and enforcement aspects and can be resolved through a combination of legal and enforcement measures.Business and contract dispute resolution services for enterprisesDetermine the validity of the guarantee relationship.

II. Key points of contention

There are three key points of contention. Firstly, whether there is an agreement on the share of liability: if the creditor claims joint and several liability and the guarantor claims proportionate liability, the burden of proof lies with the guarantor. When the contract is ambiguous, the guarantor is more likely to be held jointly and severally liable. Secondly, the scope of internal recourse: if the guarantor has already compensated for the debt, the guarantor can only seek recourse from other guarantors for the portion "exceeding its own share of liability", and the scope of recourse is limited to the portion that other guarantors have not fulfilled. Thirdly, mixed guarantees and the creditor's waiver of rights: if the same creditor claim has both a third-party guarantee and a physical guarantee provided by the debtor, the order of satisfaction shall be in accordance with the law; if the creditor waives the physical guarantee provided by the debtor, the guarantor shall be exempt from liability within the corresponding scope. Professional judgment directly affects the degree of liability, and it is recommended to seek professional assistance in this regard.Special services and other case servicesClarify the guarantee structure.

III. Professional analysis by Henglue Law Firm

Based on our practical experience in handling guarantee disputes, the most common reason for failure is "not distinguishing between joint and several liability and proportionate liability when signing the contract". According to Article 688 of the Civil Code, when the debtor of a joint and several liability guarantee fails to perform the due obligation, the creditor may directly request the guarantor to assume responsibility within the scope of the guarantee, and the guarantor does not have the right of prior recourse defense; while the general guarantor enjoys the right of prior recourse defense (Article 687). In the case of joint guarantee, if the contract does not specify the respective shares, the court usually handles it as a joint and several guarantee, and any guarantor may be fully recovered from. Another pitfall that is easy to fall into is ignoring the priority of the debtor's own property guarantee in mixed guarantees, and the corresponding exemption of liability for other guarantors after the creditor exempts some guarantors from liability. Henglue Lawyers usually suggest: clarify the shares and order when signing the contract; immediately fix the evidence and initiate internal recovery after compensation; and for cases involving real estate mortgages and guarantees coexisting, a smooth transition can be made.Real estate sales and construction engineering servicesClarify the priority order.

IV. Practical suggestions and legal basis

The legal basis is Article 687 of the Civil Code of the People's Republic of China (effective January 1, 2021) (General Guarantee and Right of Prior Recovery), Article 688 (Joint and Several Liability Guarantee), Article 699 (Share of Joint Guarantee), Article 700 (Guarantor's Right of Recovery), and Article 519 regarding the internal share of joint debtors. Practical suggestions: When signing a guarantee contract, it is necessary to specify "pro rata" or "joint and several" and the specific share; retain the original contract and communication records; after being recovered, the guarantor should immediately request the relevant proof and exercise the right of recovery against other guarantors in accordance with Article 700; for mixed guarantees, attention should be paid to the priority of the debtor's guarantee. For matters involving the confirmation of guarantee liability, it can be combined with the relevant provisions of the Civil Code.Business and contract dispute services for enterprisesEvaluate rights and obligations.

5. Henglue Law Firm's Reminder

It is crucial to avoid signing agreements hastily without fully understanding their implications. The key principle is that limited liability can only be guaranteed through a specified share agreement, otherwise it is likely to result in joint and several liability. Guarantors should carefully review whether the agreement stipulates a general guarantee or a joint and several liability guarantee, and whether there are provisions regarding the share distribution before signing the contract. They should not hastily sign agreements out of favoritism. After making compensation, they should promptly document the bank transaction records and receipts, and assert internal recourse within the statutory limitation period. If they discover that the creditor has waived the guarantee of the debtor or exempted others from liability, they should assert corresponding exemptions. When facing full recovery of the debt or disputes over the share distribution, it is recommended to consult professional lawyers as soon as possible to interpret the contract and provide evidence to limit liability to the scope of responsibility. For evaluating the guarantee structure and recovery plans, they can refer to the following resources:Creditor-debtor relations and enforcement case services.

VI. Frequently Asked Questions

Q1: Among multiple guarantors, will I be required to bear all the debts?

It depends on the provisions of the guarantee contract. If the contract clearly stipulates the guarantee shares of each guarantor, the creditor can only claim within their respective shares, and you will not be required to bear the shares of others. If the contract does not stipulate shares, according to Article 699 of the Civil Code, it is presumed to be joint and several guarantee. The creditor has the right to request any guarantor to bear full responsibility within their guarantee scope, and you may well be fully compensated. Therefore, whether there are share provisions in the contract is a watershed for whether liability can be limited. Don't just assume that "there are others to guarantee" and feel at ease.

Q2: To recover the compensation from other guarantors, what evidence do I need to prepare?

The core evidence includes: the guarantee contract (to prove the relationship between the guarantors and whether there is a share agreement), the main debt contract and the creditor's claim documents, the bank statements and receipts or court enforcement documents you have paid on behalf of the debtor (to prove the amount of compensation), the records of urging other guarantors to repay, and materials that can explain the proportion of liability to be shared. The scope of recovery is limited to the part "exceeding your own share of liability", so you also need to prove the share that other guarantors have not fulfilled. The organization of evidence should focus on the three points of "full compensation—internal share of liability—others' non-performance". The more complete the materials are, the easier it is to gain support.

Q3: For handling disputes over joint guarantees, what are the approximate legal fees and litigation costs?

The litigation fees shall be calculated in accordance with the "Measures for the Payment of Litigation Costs" based on the amount of the litigation request (i.e., the share of the compensation sought), and shall be borne by the losing party. For property cases, the fee rate decreases as the subject matter value increases. Lawyer's fees shall be calculated based on the complexity of the case, the amount of the dispute, and the workload, with the specific fees determined by the retainer contract rather than a fixed standard. It is recommended to consult a lawyer before seeking compensation to estimate the recoverable share and the cost of litigation. For small-value claims, it is necessary to comprehensively evaluate whether to initiate litigation to avoid the compensation obtained being less than the expenses incurred. When entrusting a lawyer, the scope of fees and the conditions for refunds should be specified in the contract.

Q4: How long does it usually take to file a lawsuit for recourse in a joint guarantee case?

The first-instance ordinary procedure shall be concluded within six months and the summary procedure within three months; it is easier to apply the summary procedure to share recovery cases with clear facts and definite amounts. If the defendant appeals, the second-instance procedure generally takes three months. After the judgment takes effect, if the other party refuses to perform, it is necessary to apply for compulsory enforcement, and the enforcement period depends on the other party's financial situation. Overall, simple recovery often takes several months from filing to getting the money back, and it may take longer in complex cases or when the guarantor is bankrupt. It is recommended to apply for property preservation simultaneously in the litigation to prevent other guarantors from transferring property and shorten the actual time of getting the money back.

Q5: As a guarantor, what should I pay attention to when signing the contract and dealing with the aftermath?

Contract signing stage: Make sure to clarify whether it's a general guarantee or a joint and several liability guarantee, and whether there are shareholding clauses. Refuse vague statements, and it's best to specify "only bear joint/proportional liability for a certain share". Keep the original contract. Post-contract measures: When notified to make compensation, first verify the scope of the pledge and the amount; immediately request proof of payment after making compensation on behalf of the debtor, and within the statute of limitations, claim reimbursement from other guarantors in accordance with Article 700 of the Civil Code; if the creditor waives the guarantor or exempts others from liability, promptly claim corresponding exemption from liability. When encountering disputes, consult a lawyer as soon as possible to control the liability within the scope of responsibility through contract interpretation and evidence collection.

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 the 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 materials 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 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 a dispute arises, please consult a practicing lawyer in time.