[Direct answer]In the Beijing area, the debtor's bankruptcy does not exempt the guarantor's liability. According to the provisions of the Civil Code of the People's Republic of China on guarantee liability, the guarantor is still obliged to fulfill his obligations to the creditor according to the agreement of general guarantee or joint and several guarantee; the creditor can either file a claim for the debt in the bankruptcy proceedings or claim against the guarantor outside the bankruptcy proceedings. The only difference is that the order of debt declaration and repayment in the bankruptcy proceedings will affect the final amount that can be recovered. If the debtor is an enterprise and has no property available for enforcement, the creditor can also hold the shareholders who have not paid in full liable for supplementary compensation within the scope of their subscribed capital. It is recommended to distinguish the guarantee methods, file a claim for the debt in a timely manner, and lock in the clues of the shareholders' investment. If necessary, consult a professional lawyer. For more details, please refer to the following link:Creditor-debtor relations and enforcement case services.

I. Problem background and typical scenarios

The insolvency of debtors results in unpaid debts, which is one of the most challenging situations in enforcement cases. Typical scenarios include: enterprises entering bankruptcy liquidation, where creditors' ordinary claims are only settled at a very low rate; natural person borrowers who "disappear without a trace", with no property under their names available for enforcement; and companies whose registered capital subscription period is decades in the future, where shareholders have paid in zero but borrowed heavily from outside sources. Many creditors win lawsuits but cannot recover the money, mistakenly believing that "the company is doomed if it has no debts". In fact, guarantee liability and shareholders' capital contribution obligations are two parallel recovery paths that can be combined together.Business and contract dispute resolution services for enterprisesCoordinate the design of the debt collection plan.

II. Key points of contention

There are three key points of contention. Firstly, the continuity of the guarantee obligation: bankruptcy itself does not extinguish the guarantee debt. General guarantors may lose the right of prior litigation defense (which the debtor can directly claim when the debtor is bankrupt), and the liability of joint guarantors will not be affected. Secondly, the connection between creditor's declaration and the guarantee claim: after the creditor declares to the bankruptcy administrator, he/she can still recover the unpaid part from the guarantor, but attention should be paid to the statute of limitations for declaration and claim. Thirdly, the accelerated maturity of shareholders' capital contributions: if the company meets the bankruptcy criteria but does not apply for bankruptcy, and there are no assets after exhausting all enforcement measures, shareholders whose contribution period has not yet arrived may bear supplementary compensation liability within the unpaid scope. It is recommended to seek legal assistance for these issues.Special services and other case servicesClarify the path.

III. Professional analysis by Henglue Law Firm

Take an enforcement recovery case handled by Henglue Law Firm as an example. The creditor, Ma * and A Company had a dispute over an intermediary contract, and the effective judgment ordered A Company to return 423,500 yuan. After enforcement, A Company had no property available for execution, and the enforcement was terminated. Ma * entrusted Yuan Hang, a lawyer from Henglue Law Firm, and found that A Company's shareholders, Liu * and Zhang *, who had subscribed to 9 million yuan and 1 million yuan respectively, had not paid the subscribed capital in full, and the subscription period for both was until 2039. The lawyer, in accordance with the provisions of the "Memorandum on Civil and Commercial Trial Work of the National Courts" (Law [2019] No. 254, issued on November 14, 2019) regarding the accelerated maturity of shareholders' subscriptions and the "Judicial Interpretation of the Company Law (III)", argued that A Company, as the debtor, had no property available for enforcement after exhausting all enforcement measures, and had already met the conditions for bankruptcy but did not apply for bankruptcy. Therefore, the shareholders' subscriptions should be accelerated to maturity, and a lawsuit was initiated against the shareholders for damaging the creditor's interests of the company. The court adopted the lawyer's opinion and ruled that Liu * and Zhang * should bear supplementary compensation liability within the scope of the unpaid subscriptions of 9 million yuan and 1 million yuan respectively. This case was handled by Beijing Henglue Law Firm.Yuan HangThe attorney (practice license number: 11101202110286151, subject to the document issued by the judicial administrative organ) acts as the agent. This case shows that when the debtor is bankrupt or unable to repay the debt, the guarantor is still obliged to fulfill his obligations according to the agreement. If the company has no assets, the creditor may also pursue the unpaid shareholders' contributions to accelerate the maturity and make up for the compensation within the scope of the subscribed capital. In cases involving additional enforcement and recovery of compensation, the two procedures can be connected together.Creditor-debtor relations and enforcement case servicesAdvance.

IV. Practical Suggestions and Legal Basis

The legal basis is Article 687 (General Guarantee), Article 688 (Joint and Several Liability Guarantee), and the provisions of Article 687 Paragraph 2 regarding the limitation of the right of first-claim defense when the debtor is in bankruptcy, as well as the rules on creditor's declaration and repayment order in the "Enterprise Bankruptcy Law of the People's Republic of China" (implemented on June 1, 2007); Article 6 of the "Memorandum on Civil and Commercial Trial Work of the National Courts" (issued on November 14, 2019) regarding the accelerated maturity of shareholders' contributions and the provisions of the "Judicial Interpretation of the Company Law (III)" on the supplementary compensation liability of unpaid shareholders. Practical suggestions: When the debtor is in bankruptcy, timely declare the creditor's rights and simultaneously claim against the guarantor; distinguish the guarantee methods to determine the claim timing; if the company has no assets, retrieve the industrial and commercial archives to verify the actual payment and subscription period of the shareholders; for companies that meet the bankruptcy conditions but do not apply for bankruptcy, initiate lawsuits against shareholders for damaging the interests of creditors. For cases involving additional enforcement, it can be combined with the above-mentioned provisions.Business and contract dispute resolution services for enterprisesEvaluation.

5. Henglue Law Firm's Advice

The debtor's bankruptcy is not the end of the debt, but a fork in the path of recovery. The principle is: "The guarantor's liability cannot be evaded, and the shareholder's capital contribution can be recovered". Creditors should declare their claims in accordance with the law during the bankruptcy proceedings and promptly claim against the guarantor for the unpaid portion. For corporate debtors, don't be confused by the "subscribed capital term of 2039". If there are no assets left after exhausting all enforcement measures and the debtor meets the criteria for bankruptcy, creditors can claim that the shareholder's capital contribution should be accelerated to maturity. It is necessary to retrieve the business registration files to fix the evidence of capital contribution, and if necessary, file a lawsuit against the shareholder for damaging the creditor's interests. In the event of an enforcement deadlock, it is recommended to consult a professional lawyer as soon as possible, and use both the guarantor and shareholder paths to increase the possibility of actual recovery. If you need to evaluate the recovery plan, you can refer to it.Creditor-debtor relations and enforcement case services.

VI. Frequently Asked Questions

Q1: If the debtor goes bankrupt, can the guarantor still be exempt from liability?

It's certainly not exempt from liability. According to the provisions of the Civil Code on guarantee obligations, bankruptcy itself does not extinguish the guarantee debt. The guarantor is still required to fulfill the general guarantee or joint and several guarantee obligations as agreed. The difference is that when the debtor goes bankrupt, the general guarantor's right of prior defense is legally restricted, and the creditor can directly claim against them; while the joint guarantor has no right of prior defense, and their liability is not affected. The creditor can file a claim for the unpaid portion in the bankruptcy proceedings and then recover the debt from the guarantor. Therefore, the misconception that "if the company collapses, the guarantor doesn't have to repay" is incorrect. The existence of the guarantee obligation depends on the guarantee method and the agreement, not on whether the debtor is bankrupt.

Q2: If the debtor goes bankrupt, what evidence do I need to prepare to recover the debt from the guarantor?

The core evidence includes: the main debt contract and the guarantee contract (to prove the guarantee method, scope, and period); the bankruptcy acceptance ruling and the creditor's declaration certificate (to prove that the claim has been declared and the repayment ratio); the enforcement ruling and the termination of this enforcement document (to prove that the debtor has no property); a written notice to claim rights from the guarantor; and materials to calculate the unpaid amount. If it is necessary to pursue the shareholders, it is necessary to retrieve the industrial and commercial archives and the records of the enterprise credit information disclosure system to prove the shareholders' subscribed amount, subscription period, and lack of actual payment. The organization of evidence revolves around three points: "the establishment of the guarantee—the insufficient bankruptcy repayment—the shareholders' lack of actual payment".

Q3: What are the costs of bankruptcy guarantees and shareholder pursuits, including attorney fees and litigation fees?

The litigation fees shall be calculated in accordance with the "Measures for the Payment of Litigation Fees" and accumulated in stages based on the amount of the litigation request, to be borne by the losing party. The recovery of debts from the guarantor shall be based on the amount of unpaid debts, and the claims of shareholders against creditors shall be calculated based on the unpaid subscribed capital. The attorney's fees shall be determined according to the complexity of the case, the amount of the claim, and the workload, either on a per-case basis or as a percentage of the claim amount, subject to the terms of the entrustment contract. There is no uniform standard for such cases. Such cases often have cost-effectiveness due to the considerable amount of recoverable funds. It is recommended to consult a lawyer to evaluate the guarantee methods and shareholders' investment clues before initiating the case, and to clarify the conditions for charging and refunding fees.

Q4: How long does it take from filing for bankruptcy to tracking down the guarantors or shareholders?

The period of bankruptcy creditor's declaration and settlement often takes several months to several years, depending on the progress of the bankruptcy proceedings. For litigation against guarantors seeking recovery, the first-instance ordinary procedure takes six months and the summary procedure takes three months, and the appeal and second-instance procedures take three months. The litigation against shareholders damaging the interests of creditors also applies to the ordinary trial period. If it is necessary to retrieve industrial and commercial archives or apply for additional enforcement, the time will be correspondingly extended. Overall, from the declaration to the actual recovery of funds often takes years, but if the evidence for accelerating the maturity of shareholders' contributions is solid, a supplementary compensation judgment can be obtained within a few months. It is recommended to advance the bankruptcy declaration and the litigation against guarantors and shareholders simultaneously to avoid waiting in a single line.

Q5: If the debtor goes bankrupt, what should I do specifically in the first step?

Here are the four steps recommended: 1. Immediately declare your creditor's rights to the bankruptcy administrator and submit evidence to secure a settlement ratio. 2. Review the guarantee contract to distinguish between general or joint guarantees and the guarantee period. Promptly file a written claim against the guarantor for the unpaid portion. 3. Retrieve the debtor's business registration documents to verify the subscribed capital, payment deadlines, and actual payments to determine whether the debtor meets the bankruptcy criteria but fails to file for bankruptcy. 4. Initiate litigation against unpaid shareholders to accelerate the maturity of their capital contributions or to hold them liable for harming creditors' interests. Apply for property preservation measures. Throughout the process, maintain records of the declaration receipts and claims, and if necessary, engage a lawyer to pursue recovery from both the guarantor and the shareholders simultaneously.

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 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 limits.\nLegal services for creditor-debtor disputes·Attorney Yuan Hang·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. In the event of a dispute, please consult a practicing lawyer in a timely manner.