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中华人民共和国担保法(一)

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中华人民共和国担保法
GUARANTEE LAW OF THE PEOPLE'S REPUBLIC OF CHINA

(Adopted at the 14th Meeting of the Standing Committee of the Eighth National People's Congress on June 30, 1995, promulgated by Order No. 50 of the President of the People's Republic of China on June 30, 1995, and effective as of October 1, 1995 )
颁布日期:19950630  实施日期:19951001  颁布单位:全国人大常委会

  Contents

  Chapter I General Provisions

  Chapter II Guaranty

  Section 1 Guaranty and Guarantor

  Section 2 Contract of Guaranty and Mode of Guaranty

  Section 3 Liability of Guaranty

  Chapter III Mortgage

  Section 1 Mortgage and Gage

  Section 2 Contract of Mortgage and Mortgage Registration

  Section 3 Effect of Mortgage

  Section 4 Realization of Mortgage

  Section 5 Mortgage of Maximum Amount

  Chapter IV Pledge

  Section 1 Pledge of Movables

  Section 2 Pledge of Rights

  Chapter V Lien

  Chapter VI Deposit

  Chapter VII Supplementary Provisions

  Chapter I General Provisions

  Article 1 This Law is formulated for the purpose of promoting the capital flow and commodity circulation, safe guarding the realization of obligatory right, and developing the socialist market economy.

  Article 2 In such economic activities as loans, sales, goods freight and hire of processing work, etc., where the creditor needs to safeguard the realization of his obligatory right by the way of guarantee, a guarantee may be established in accordance with the provisions of this Law.

  The modes of guarantee provided for in this Law shall be guaranty, mortgage, pledge, lien and deposit.

  Article 3 In activities of guarantee, the principle of equality, voluntariness, fairness and good faith shall be complied with.

  Article 4 When a third party offers the creditor a guarantee on behalf of the debtor, he may require the debtor to offer a counter guarantee.

  The provisions on guarantee of this Law shall be applicable to counter-guarantee.

  Article 5 A guarantee contract shall be an accessory contract to the master contract. Where the master contract is invalid, the guarantee contract shall also be invalid. Where an agreement is otherwise reached in the guarantee contract, that agreement shall prevail.

  Where a guarantee contract is affirmed to be invalid, the debtor, surety or creditor is in fault, they shall respectively bear the relevant civil liability according to their own faults.

  Chapter II Guaranty

  Section 1 Guaranty and Guarantor

  Article 6 In this Law, guaranty means that the guarantor and the creditor agree that, when the debtor fails to perform his debt, the guarantor will perform the debt or bear the liability in accordance with the agreement.

  Article 7 A guarantor may be a legal person, other organization or a citizen who has ability to discharge of debts on behalf of others.

  Article 8 The state administrative departments shall not be a guarantor, unless they, with the approval of the State Council, transfer loans for the purpose of using the loans of foreign governments or international organizations.

  Article 9 Such institutions and social organizations as schools, kindergartens and hospitals, etc., which are established for the purpose of public interest shall not be a guarantor.

  Article 10 A branch or functional department of an enterprise as legal person shall not be a guarantor.

  If a branch of an enterprise as legal person has been delegated in writing by the legal person, it may offer the guaranty within the delegation extent.

  Article 11 No organization or individual may oblige enterprises or financial institutions such as a bank to offer guaranty for others; enterprises and financial institutions such as a bank shall have the right to refuse to offer guaranty for others when they are obliged to.

  Article 12 Where there are two or more guarantors for the same debt, the guarantors shall, according to their own guaranty shares agreed in the guaranty contract, bear the guaranty liability. In case of no agreement on the guaranty shares, the guarantors shall bear the joint liability. Thus the creditor may demand any of the guarantors to bear the entire guaranty liability, and any of the guarantors shall bear the obligation to guarantee the entire realization of the obligatory right. The guarantor who has borne the guaranty liability shall be entitled to claim repayment from the debtor, or to demand other guarantors bearing the joint liability to satisfy him their shares that they shall bear.

  Section 2 Guaranty Contract and Guaranty Mode

  Article 13 The guarantor and creditor shall enter into a guaranty contract in written form.

  Article 14 The guarantor and creditor may enter into a guaranty contract respectively as for a single master contract, and may also, within the maximum obligatory right amount as for a loan contract occurred continuously during a certain period or a commodity trade contract, enter into a guaranty contract.

  Article 15 A guaranty contract shall contain the following contents:

  1. the categories and amount of a master obligatory right guaranteed;

  2. the time limitation to perform the debt by the debtor;

  3. the guaranty mode;

  4. the scope guaranteed by the guaranty;

  5. the time period of guaranty; and

  6. other items which the two parties consider necessary to agree.

  If a guaranty contract has the contents prescribed in the proceeding paragraph incomplete, it may be supplemented.

  Article 16 The guaranty mode contains:

  1. the general guaranty; and 2. the joint liability guaranty.

  Article 17 That the parties in a guaranty contract agree that, when the debtor cannot perform the debt, the guaranty liability is to be borne by the guarantor, is the general guaranty.

  The guarantor of a general guaranty may, without trial or arbitration on the disputes of a master contract, and before the debt cannot be performed yet with compulsory enforcement on the debtors' property according to the law, refuse to bear the guaranty liability for the creditor.

  When there is any one of the following circumstances, the guarantor shall not exercise the right prescribed in the proceeding paragraph:

  1. the address of the debtor has changed, so that it becomes a major difficulty for the creditor to demand him to perform the debt;

  2. the people's court accepting a debtor's bankruptcy case, orders suspension of execution procedure; or

  3. the guarantor abandons the right described in the proceeding paragraph in written form.

  Article 18 That the parties in a guaranty contract agree that the guarantor and debtor bear the joint liability on a debt, is the joint liability guaranty.

  If the debtor of a joint liability guaranty cannot perform the debt at the date of expiration of the debt performance time limitation prescribed in the master contract, the creditor may demand the debtor to perform the debt, and may also demand the guarantor to bear the guaranty liability within the extent of guaranty.

  Article 19 If no agreement or the agreement is not clear on the guaranty mode by the parties, the guaranty liability shall be borne according to the joint liability guaranty.

  Article 20 The guarantor of a general guaranty and joint liability guaranty shall be entitled to have the counter plead right of the debtor. If the debtor abandons his counter plead right, the guarantor shall still be entitled to have right to counter plead.

  The counter plead right means that the right of, when the creditor exercises his obligatory right, the debtor according to legal reasons executing the petition right against the creditor.

  Section 3 Guaranty Liability

  Article 21 The guaranteed scope of a guaranty concludes the master obligatory right and its interest, contractual fine, damage compensation and expense of credit realization. If there is an agreement otherwise in the guaranty contract, it shall be complied with.

  If no agreement or the agreement is not clear on the guaranteed scope of a guaranty by the parties, the guarantor shall bear the liability to the entire debt.

  Article 22 During the time period of guaranty, where the creditor assigns the master obligatory right to a third party according to the law, the guarantor continues to bear the guaranty liability within the original guaranteed scope of the guaranty. If there is an agreement otherwise in the guaranty contract, it shall be complied with.

  Article 23 During the time period of guaranty, if the creditor wants to permit the debtor to assign the debt, he shall get the written consent from the guarantor, the guarantor bears no guaranty liability on the debt assigned without his consent.

  Article 24 If the creditor and debtor agree to change the master contract, they shall get the written consent from the guarantor, without this written consent, the guarantor bears no longer guaranty liability. If there is an agreement otherwise in the guaranty contract, it shall be complied with.

  Article 25 If no agreement on guaranty period between the guarantor and creditor of a general guaranty, the guaranty period shall be 6 months from the date of expiration of the master debt performance time limitation.

  During the guaranty period agreed in the contract or described in the proceeding paragraph, if the creditor has not filed a case against the debtor or applied for the arbitration, the guarantor shall be exempted from the guaranty liability; if the creditor has filed a case or applied for the arbitration, the guaranty period shall be applied to the provisions on the discontinuance of limitation of action.

  Article 26 If no agreement on a guaranty period between the guarantor and creditor of a joint liability guaranty, the creditor shall be entitled to have the right within 6 months from the date of expiration of the master debt performance time limitation to demand the guarantor to bear the guaranty liability.

  During the guaranty period agreed in the contract or described in the proceeding paragraph, if the creditor has not demanded the guarantor to bear guaranty liability, the guarantor shall be exempted from the guaranty liability.

  Article 27 The guarantor shall make a guaranty on a credit occurred continuously according to the provisions of Article 14 in this law, if no agreement on guaranty time period, the guarantor may at all times inform the creditor in written form to terminate the guaranty contract, however the guarantor shall, as for the credit occurred before having informed the creditor, bear guaranty liability.

  Article 28 Where there are both a guaranty and a guarantee of real right on a same obligatory right, the guarantor shall bear the guaranty liability on the obligatory right except the guarantee of real right.

  If the creditor abandons the guarantee of real right, the guarantor shall, within the scope of right abandoned by the creditor, be exempted from the guaranty liability.

  Article 29 Where a branch of an enterprise as a legal person enters into a guaranty contract with the creditor without written delegation from the enterprise as legal person or exceeding the extent of delegation, this contract shall be invalid or the part exceeding the extent of delegation shall be invalid; if the creditor and the enterprise as legal person has default, they shall bear the relevant civil liability according to their fault respectively; if the creditor has no default, the civil liability shall be borne by the enterprise as legal person.

  Article 30 If there is any one of the following circumstances, the guarantor shall not bear the civil liability:

  1. the parties of the master contract collude to defraud the guarantor to offer a guaranty; or

  2. the creditor of the master contract take means of fraud or coercion to force the guarantor to offer a guaranty against his true intention.

  Article 31 After the guarantor has borne the guaranty liability, he shall be entitled to claim repayment from the debtor.

  Article 32 After the people's court accepts a debtor's bankruptcy case, if the creditor does not declare his obligatory rights, the guarantor may take part in the bankrupted property distribution, exercise the right to claim repayment in advance.

  Chapter III Mortgage

  Section 1 Mortgage and Gage

  Article 33 The mortgage prescribed in this Law, means a guarantee that a debtor or a third party does not transfer the possession of the property listed in Article 34 in this Law, make the said property as obligatory right. When the debtor does not perform the debt, the creditor shall be entitled to have right to keep the said property to offset the debt or have priority in satisfying his claim out of proceeds from the auction, sale of the said property pursuant to the provisions of this Law.

  The debtor or third party prescribed in the proceeding paragraph shall be the mortgagor, the creditor shall be the mortgagee, the property offered to guarantee shall be the gage.

  Article 34 The following properties may be mortgaged:

  1. the house and other land fixtures owned by the mortgagor;

  2. the machine, transportation means and other property owned by the mortgagor;

  3. the state-owned right to the use of land, house and other land fixtures which the mortgagor is entitled to dispose of pursuant to the law;

  4. the state-owned machine, transportation means and other property which the mortgagor is entitled to dispose of pursuant to the law;

  5. the right to the use of land on the unreclaimed land such as unreclaimed mountains, unreclaimed valleys, unclaimed hills or unreclaimed beaches which is contracted for management by the mortgagor in accordance with law and is agreed to mortgage by the contractee; or

  6. other property which may be mortgaged in accordance with the law.

  The mortgagor may mortgage the properties listed in the proceeding paragraph all together.

  Article 35 The obligatory right guaranteed by the mortgagor shall not exceed the value of the gage.

  After the property is mortgaged, the surplus part that the said property is more than the obligatory right guaranteed, may be mortgaged once more, but shall not exceed the surplus part.

  Article 36 If the house upon the state-owned land obtained according to the law is to be mortgaged, the right to the use of the state-owned land within the scope the house occupies shall be mortgaged at the same time.

  If the right to the use of state-owned land obtained by way of transfer according to the law, when mortgaged the house upon the said state-owned land shall be mortgaged at the same time.

  The right to the use of land of enterprises of a township (town) or village shall not be mortgaged separately. If the buildings of enterprises of township (town) or village such as a plant is to be mortgaged, the right to the use of the land within the scope it occupies shall be mortgaged at the same time.

  Article 37 the following properties shall not be mortgaged:

  1. the ownership of land;

  2. the ownership of the lands owned by collectives such as cultivated land, house sites, private plots of cropland and hilly land shall not be mortgaged, except that prescribed in item 5 of Article 34, paragraph 3 of Article 36 of this Law;

  3. the facilities for education, the facilities for public health and medicine and other facilities for social benefit of the institutions or social units for purpose of public interest such as schools, kindergartens or hospitals;

  4. the properties whose ownership or right to use is uncertain or in dispute;

  5. the properties sealed up, distrained or regulated; or

  6. other properties which shall not be mortgaged pursuant to law.

  Section 2 Mortgage Contract and Gage Registration

  Article 38 The mortgagor and the mortgagee shall enter into a mortgage contract in written form.

  Article 39 A mortgage contract shall contain the following contents:

  1. the categories and amount of master obligatory right guaranteed;

  2. the time limitation to perform the debt by the debtor;

  3. the name, quantity, quality, situation, address, ownership or right to the use of the gage;

  4. the extent guaranteed by the mortgage; and

  5. other items the parties consider necessary to agree.

  If a mortgage contract has the contents prescribed in the proceeding paragraph incomplete, it may be supplemented.

  Article 40 When entering into a mortgage contract, the mortgagor and the mortgagee shall not agree that, when the mortgagee is not satisfied at date of expiration of the time limitation for the debt performance, the ownership of the gage is to be transferred to the creditor.

  Article 41 Where the parties take the properties prescribed in Article 42 of this Law to mortgage, he shall go through the gage registration, the mortgage contract shall be effective as the date of registration.

  Article 42 The departments handling the gage registration are as follows:

  1. in case that the right to the use of land without fixtures upon the land is to be mortgaged, it shall be the land administration departments which upon verification issue certificates for the right to the use of land;

  2. in case that the city real estates or the building of the township (town) or village enterprises such as a plant is to be mortgaged, it shall be the departments prescribed by the local people's governments at and above the county level;

  3. in case that the woods are to be mortgaged, it shall be the forestry administration departments at and above the county level;

  4. in case that aircraft, vessels or vehicles are to be mortgaged, it shall be the registration departments for transportation means; or

  5. in case that the equipment or other movables of a enterprise are to be mortgaged, it shall be the administrations of industry and commerce where the properties are located.

  Article 43 Where the party takes other properties to mortgage, he may go through the gage registration on a voluntary basis, the mortgage contract shall be effective as the date of registration.

  The party who has not handled the gage registration shall not be opposed to a third party. If the party goes through the gage registration, the registration department is to be the notary department of the area where the mortgagor is located.

  Article 44 When the gage registration is to be handled, the following documents or their copies shall be produced to the registration department:

  1. the master contract and the mortgage contract; and

  2. the certificate of ownership of or right to the use of the gage.

  Article 45 The information registered by the registration department shall be allowed to inquire and read, copy by hand and copy.

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