[Direct answer]In the Beijing area, yes, this is the core feature of a general guarantee. A general guarantor enjoys the right of first-instance defense: the creditor must first file a lawsuit or arbitration against the borrower, and only after the borrower's property has been enforced by law and still cannot be repaid, can the creditor require the general guarantor to assume responsibility; if the creditor only sues the guarantor or sues both parties together, the court shall explain to the creditor that the borrower will be added as a co-defendant. However, there are four exceptions to the right of first-instance defense. Under such circumstances as the borrower's whereabouts are unknown and there is no property available for enforcement, or the court has terminated the current enforcement, the creditor can directly seek recourse from the general guarantor.

I. Problem Background and Typical Scenarios

A friend borrowed money and asked for a guarantor. The promissory note stated "general guarantee", and the lender thought the guarantor could be pursued at any time. However, when the borrower went missing, the lender sued the guarantor, but was told by the court that they needed to sue the borrower first—the right of first-action defense caused many creditors to take a detour. Conversely, the guarantors often mistakenly believe that general guarantees are just a delaying tactic, ignoring that their responsibilities will not disappear just because of that.

II. Key points of contention

First, the determination of the guarantee mode: Only those expressly stated as general guarantees shall be handled in accordance with general guarantees, and those not stated shall be handled in accordance with joint and several liability guarantees. Second, the exercise stage of the right of first-instance defense: the order of adding co-defendants in the litigation stage and the execution stage. Third, how to provide evidence for the exceptional circumstances of the right of first-instance defense. Fourth, the connection between the guarantee period and the first-instance procedure, and the consequences of missing the period.

III. Professional analysis by Henglue Lawyers

Judging from Henglue Lawyer's experience in handling disputes over guarantee contracts, the key factors determining the outcome of general guarantee cases generally lie in three aspects: First, the qualification of the guarantee method - the wording on the IOU and guarantee letter determines everything. Those who write "assume general guarantee responsibility" enjoy the right of prior litigation defense, while those who only write "guarantee" without specifying the method will be treated as joint and several liability guarantee according to law, with different degrees of responsibility; Second, the control of the procedural order - the creditor should first sue the borrower and apply for enforcement. After obtaining the final judgment or evidence that the property cannot be traced, they can then claim against the general guarantor. Both documents of the two steps should be preserved; Third, the application of exceptions - if the borrower is missing and has no enforceable property, has entered bankruptcy proceedings, or has evidence proving that his property is insufficient to fulfill all debts or has lost the ability to perform, the guarantor can be directly required to bear responsibility. For the guarantor, the right of prior litigation defense is just a delay rather than an exemption. What really needs to be calculated is the guarantee period: if the creditor does not initiate litigation or arbitration against the borrower within the period, the general guarantor will be exempt from liability according to law. 恒略律师在处理保证合同纠纷的经验来看，一般保证案件的胜负手主要在于三处：其一，保证方式的定性——借条、担保书上的措辞决定一切，写“承担一般保证责任”者享有先诉抗辩权，只写“担保”未注明方式的，依法按连带责任保证处理，责任轻重不同；其二，程序顺序的把控——债权人应先起诉借款人并申请强制执行，拿到终本裁定或财产查控不能的证据后，再向一般保证人主张，两步的文书都要留存；其三，例外的适用——借款人下落不明且无可供执行财产、已进入破产程序、有证据证明其财产不足以清偿全部债务或丧失履行能力的，这些情形下可径行要求保证人担责。对保证人而言，先诉抗辩权只是延缓而非免除，真正需要算的是保证期间：债权人未在期间内对借款人提起诉讼或仲裁的，一般保证人依法免责。

IV. Practical suggestions and legal basis

The first step is to verify the guarantee mode described in the guarantee document and raise objections to any qualitative errors in a timely manner. The second step is for the creditor to proceed in the order of the borrower first and then the guarantor, and to retain evidence at key stages such as judgments, enforcement investigations, and final execution rulings. The third step is to directly sue the general guarantor in the event of exceptional circumstances, while simultaneously preparing evidence of the borrower's whereabouts being unknown or the inability to conduct property investigations. The fourth step is to closely monitor the guarantee period and file a lawsuit or arbitration against the borrower within that period. Main legal basis: Article 686 of the Civil Code of the People's Republic of China (effective from January 1, 2021) regarding guarantee modes, and Article 687 regarding the right of first-claim defense and its exceptions; the Interpretation of the Supreme People's Court on the Application of the Civil Code Concerning the Guarantee System (effective from January 1, 2021) regarding the identification of guarantee modes and joint defendants; specific application shall be subject to the currently effective provisions.

5. Henglu Law Firm's Reminder

There are generally three guarantees: if the guarantee is not specified, it will be treated as a joint and several liability, and the wording determines the degree of responsibility; it is a principle to sue the borrower first, and exceptions must be supported by evidence; the guarantee period is a hard deadline, and failure to meet it will result in exemption from liability. For disputes involving guarantee contracts, you can resolve them through legal channels.Creditor's rights and debts, and enforcementThe service obtains an overall solution, which can be referenced when dealing with the intersection of private lending and guaranteesContract disputesThe column, which involves the identification of joint debts between spouses, can be combined with other columns to provide more comprehensive legal advice.Marriage, family, and disputesFor matters related to the execution of property clues, you can consult usSpecial servicesTeam.

VI. Frequently Asked Questions

Q1: On the IOU, it only says "Guarantee" but not the method. What kind of guarantee is this?

According to the provisions of the Civil Code, if the parties have not agreed on the form of guarantee or the agreement is unclear, they shall bear the general guarantee liability—but this is a judgment on the term "general guarantee". In practice, most cases without an explicit mention of general guarantee are treated as joint and several liability guarantees. The specific determination shall depend on the complete wording of the guarantee clause.

Q2: Can the borrower and the general guarantor be sued together?

They can be sued together. The court will clarify that the borrower will be listed as a co-defendant, and the borrower's property will be executed first. The part that cannot be executed will then be borne by the general guarantor. The process will be resolved once, but the responsibility will still be divided according to priority.

Q3: If the borrower goes missing, do I still need to sue them first?

If the borrower is untraceable and has no property available for enforcement, this constitutes an exception to the right of defense in a lawsuit, allowing the creditor to directly sue the general guarantor. In this case, the creditor needs to prepare evidence such as proof of the borrower's whereabouts and records of investigation and control to support their case.

Q4: How is the guarantee period for a general guarantee calculated?

The agreement related to the performance period of the principal debt shall be determined by the agreement. If there is no agreement, it shall be six months from the date of expiration of the performance period of the principal debt. The creditor shall file a lawsuit or apply for arbitration against the borrower within the guarantee period, otherwise the general guarantor shall be exempt from liability.

Q5: Can the right of prior recourse allow the guarantor to avoid liability permanently?

No. The right of first-instance defense is just a sequential defense. Even if the borrower's property is executed, the guarantor is still obliged to bear responsibility. Its value lies in giving the guarantor a buffer period, rather than exempting him from responsibility.

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 regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, 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. If a dispute arises, please consult a practicing lawyer in time.