Comments And Analyses On Dissensions In Loan And Guarantee Contract Dongting Water Breeding Company V. Everbright Bank, Etc

In the wave of economic development of the market, the dispute because the loan contract dispute of an increasingly complex, especially in the creditor, debtor and guarantor loan participation contract, warranty contracts, contract pledge contract consisting of a chain formed, it is complicated. Hunan Dongting Aquaculture Co., Ltd. v. China Everbright Bank branch in Changsha, Shun, Hunan Jiarui new material loan guarantee contract dispute case is a typical representative of this family dispute. Hunan Jiarui new material twice each branch of the China Everbright Bank, Hua Shun borrowing 20 million and 30 million, by the Dongting Aquaculture companies provide joint liability guarantee. China Everbright Bank branch in after another along with Jiarui company signed a 75% stake in the company held by Jiarui new Zhensheng company as the underlying equity pledge contract, as well as China Everbright Bank branch in turn along with the new company signed Zhensheng guarantee contracts are guaranteed The 50 million yuan to repay. Hunan Jiarui new material debtor defaults, along Branch of China Everbright Bank to be taken to court, tied guarantor Dongting Aquaculture company co-defendant. The case is mainly related to the loan contract entered into force, the debtor if there is fraud, whether or not the guarantor shall bear joint responsibility to ensure that the focus of the three disputed. First Instance found against the defendant; Dongting Aquaculture companies appeal, second instance that the real issue is whether the case of pledge guarantee contract Jiarui company to its new Zhensheng company holds 75% equity offer has been accepted. In that case the facts and legal issues related to the analysis found that 50 million portion of the loan contract in force, of which 20 million loan contract because the two sides agreed to meet the "security contract in force, the loan contract entered into force at the same time," the entry into force of the elements, and therefore take effect; and 30 million loan pledge contract due to two contracts, one of the conditions attached to the entry into force of ineffective, resulting in a loan contract master contract invalid. Jiarui company for failing to completely change the use of funds does not constitute a contract fraud; Jiarui company because they do not have the element of fraud, and the commencement of the contract to ensure that the relationship between the civil and contract fraud is not the same legal relationship not constitute a contract fraud. Due to the loan contract with a guaranteed contract with the property relations, so Dongting Aquaculture company only 20 million loan guarantee to assume responsibility in force, but not yet in force for 30 million yuan loan guarantee does not assume responsibility. The case of a security system in order to maintain the basic law that guarantees the principle of the contract from the property, and therefore not suitable for independent guarantee.