[Direct answer]In the Beijing area, the distinction between general guarantee and joint and several guarantee is generally determined by the contractual provisions and statutory presumptions. A guarantor of a general guarantee enjoys the right of prior litigation defense, that is, before the debtor's property is legally enforced through judicial or arbitration proceedings and the debtor still fails to perform the obligation, the guarantor may refuse to assume the guarantee liability; while a guarantor of a joint and several guarantee does not have this right. When the debtor fails to perform the due obligation, the creditor may directly request the guarantor to assume the liability. According to Article 686 of the Civil Code of the People's Republic of China, if the parties have not agreed on the guarantee mode or the agreement is unclear, the guarantor shall bear the guarantee liability in accordance with the general guarantee—this is a major change compared with the original Guaranty Law. It is recommended to pay attention to the wording of "general" or "joint and several" when signing contracts to avoid being passively involved. For more details, please refer to the relevant provisions of the Civil Code.Creditor-debtor relations and enforcement case services.

I. Problem background and typical scenarios

It is very common for there to be confusion about the types of guarantees in lending, sales, and project arrears. Typical scenarios include: promissory notes only stating "guarantor" without specifying the type of guarantee, with both parties having different interpretations of the scope of liability afterwards; contracts stipulating "assuming joint and several guarantee liability" but mistakenly believing that the borrower should be sued first; and when a company guarantees for a client, the ambiguity of the terms results in the creditor being unable to directly hold the guarantor accountable, as the guarantor is deemed to have provided a general guarantee. Many signatories are not aware of the differences in the consequences of the two types of guarantees - joint and several guarantee is almost equivalent to being a "joint debtor", while general guarantee offers some flexibility. Such agreements directly affect the creditor's path to seeking justice and the guarantor's risk exposure. It is recommended to address this issue in combination with relevant legal provisions and practical experience.Business and contract dispute services for enterprisesReview the guarantee clauses.

II. Key points of contention

There are three key points of contention. Firstly, regarding the wording of the contract: if the contract stipulates terms such as "unconditionally assume liability" and "direct compensation", it may be interpreted as joint and several liability; if the contract only stipulates "guarantee" without specifying the method of guarantee, it shall be presumed as a general guarantee according to law. Secondly, regarding the exercise of the right of first recourse defense: a general guarantor may refuse to assume liability after the main contract dispute has been adjudicated, arbitrated, and enforced without success, but the right of defense is limited in exceptional circumstances such as the debtor's bankruptcy or the whereabouts of the debtor's property being unknown. Thirdly, regarding the application of new rules to unclear agreements: for guarantees established after the implementation of the Civil Code, if the agreement is unclear, it shall be presumed as a general guarantee, which is contrary to the presumption of joint and several liability in the original Guaranty Law. For cases during the transition period, the determination shall be based on the time of implementation of the law. It is recommended to seek legal assistance for further clarification.Special services and other case servicesClarify the application scope.

III. Professional analysis by Henglue Lawyers

Based on our practical observations in handling guarantee disputes, the most common problem is that "the terms are written vaguely, but the responsibilities are assigned heavily". According to Article 687 of the Civil Code, general guarantees are marked by the "right of prior recourse", which means that the creditor must first enforce the debtor's property without success before being able to claim against the guarantor; Article 688 stipulates that in joint and several liability guarantees, the creditor can directly request the guarantor to assume responsibility when the debtor fails to perform the due obligations. In practice, many guarantee contracts are written as joint and several guarantees to "assure the creditor", but the signatories mistakenly believe that "it's only when the borrower can't repay that it's my turn". Henglue Lawyers usually advise: clarify the guarantee mode and write down the share before signing the contract; when being claimed, first review the guarantee mode, the guarantee period, and whether the right of prior recourse can still be exercised; when there is a concurrent real estate mortgage, it can be connected with it.Real estate sales and construction project servicesDetermine the priority order.

IV. Practical suggestions and legal basis

The legal basis is Article 686 of the Civil Code of the People's Republic of China (effective from January 1, 2021) (Presumption of Unclear Agreement on Guarantee Methods), Article 687 (General Guarantee and Right of Prior Defense), Article 688 (Joint and Several Liability Guarantee), and Article 692 on the Guarantee Period. Practical suggestions: The guarantee contract must specify "general guarantee" or "joint and several liability guarantee" to avoid only writing "guarantee"; check the performance period of the principal debt and the guarantee period, and claim rights in a timely manner; general guarantors should make good use of the right of prior defense, and joint guarantors should pay attention to the risk that the creditor can directly hold them accountable; fix the contract and collection records after a dispute arises. For the review of guarantee clauses, it can be combined with other relevant provisions.Business and contract dispute services for enterprisesEvaluate rights and responsibilities.

5. Henglu Law Firm's Reminder

To distinguish between the two methods, remember the mnemonic: "Generally, you can first enforce the debtor's obligations and then directly come to me." When signing a contract, it's essential to specify the method clearly and avoid vague terms like "guarantee". The risk of joint and several guarantees is significantly higher than that of ordinary guarantees, so it's not advisable to sign a joint and several guarantee unless necessary. The guarantor should also pay attention to the guarantee period - if the creditor fails to assert their rights within the guarantee period, the guarantor may be exempt from liability. If the guarantor is held liable, they should first check the method, the guarantee period, and the right of prior litigation defense, then decide on a defense strategy. If necessary, they should consult a professional lawyer as soon as possible to avoid assuming responsibilities that could have been avoided due to a misinterpretation of the contract terms. For contract review, you can refer to the following resources:Creditor-debtor relations and enforcement case services.

VI. Frequently Asked Questions

Q1: How can I determine whether the guarantee I signed is a general guarantee or a joint and several guarantee?

Refer to the original contract provisions. If it explicitly states "general guarantee" and "the right to raise a defense of prior litigation", it is a general guarantee; if it states "joint and several liability guarantee", "unconditional compensation", or "the creditor may directly require the guarantor to assume responsibility", it is a joint and several guarantee. If the contract only states "guarantor" and "willing to be responsible" without specifying the form, it shall be presumed to be a general guarantee according to Article 686 of the Civil Code. It is necessary to pay attention to the implementation time of the law: for guarantees established before the implementation of the Civil Code on January 1, 2021, if the agreement is unclear, it shall be presumed to be a joint and several guarantee according to the original Guaranty Law; for those established after that, it shall be a general guarantee. Transitional cases should be judged in light of the time period.

Q2: Is the claim a general guarantee or a joint and several guarantee, and what evidence should be prepared for it?

The core evidence includes the original copy of the guarantee contract or guarantee clauses (the most direct proof of the agreement), the main debt contract and performance certificates, the creditor's notice claiming guarantee liability, and communication records reflecting the signing background. If the contract terms are vague, it is also necessary to prepare materials proving the "true intention of both parties", such as consultation recordings and correspondence. The exercise of the right of first-claim defense also requires proof that the debtor's property has been subject to compulsory enforcement but still cannot be performed (such as the ruling terminating the current enforcement). The goal of organizing evidence is to reconstruct the three elements of "guarantee method—guarantee period—whether the defense is feasible".

Q3: How much are the attorney's fees and litigation costs for confirming the guarantee method or defending against a lawsuit?

The litigation fees shall be calculated in accordance with the "Measures for the Payment of Litigation Costs" and accumulated in stages based on the amount of the litigation request, to be borne by the losing party. The guarantee disputes shall be calculated based on the claimed creditor's rights. The attorney's fees shall be charged based on the complexity of the case, the amount of the dispute, and the workload, either on a per-case basis or as a percentage of the subject matter value, subject to the specific provisions of the agency contract. There is no unified standard. It is recommended to consult a lawyer before defending to evaluate the guarantee method and period, determine whether the defendant can be exempted from or limited in liability, and then weigh the costs and risks. For cases that clearly exceed the guarantee period or involve guarantee methods that are favorable to the guarantor, the litigation costs are often manageable, and it is advisable to actively raise defenses.

Q4: How long does it usually take to litigate disputes over guarantee methods?

The first-instance ordinary procedure shall be concluded within six months and the simplified procedure within three months; guarantee disputes with clear facts and explicit provisions are more likely to apply the simplified procedure. If an appeal is filed, the second-instance trial generally takes three months. After the judgment takes effect, the collection of the debt depends on the debtor's or guarantor's financial situation. Overall, cases involving the simple confirmation of the guarantee method have a relatively manageable cycle and can produce results in a few months; but if they involve the authenticity of the main debtor, the priority of the mortgage, etc., the time will be extended accordingly. It is recommended to apply for property preservation in the litigation to prevent the guarantor from transferring property.

Q5: What should I pay attention to when signing a guarantee contract, and what should I do first?

Before signing the contract: First, specify the guarantee method (general or joint and several) and the share, and reject vague terms such as "guarantee"; Second, specify the guarantee period and the performance period of the principal debt to avoid ambiguity in the period; Third, evaluate your own ability to make compensation and not be hasty in accepting joint and several liability out of politeness. If you have already been sued: First, immediately retrieve the terms of the guarantee contract to confirm the method and period; Second, verify whether the creditor has claimed within the guarantee period; Third, determine whether the right of first-claim defense is feasible; Fourth, negotiate or defend in court and, if necessary, hire a lawyer to review the terms and prepare a defense. Throughout the process, keep the contract and communication records to prevent being held liable passively.

The above content is based on the judicial practice in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm about specific situations.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the necessary evidence 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. In case of disputes, please consult a practicing lawyer in time.