Analysis On The Case Of Dispute Over Guarantee Contracts Among CEB V.Donghe Co.,Ltd.and Miss Chen

With the developing of society, the improving urbanization and growing urban population produced new demand for housing, resulting in the boom of the real estate industry. The rising prices have caused lots of commercial housing mortgages. Since only the advance notice mortgage registration is available for pre-sale commercial housing and there has been different way to deal with it in judicial practice, there is huge business risk for protecting creditors'benefits, especially the bank which offers loan for the pre-sale commercial housing. CEB v. Donghe company, Miss Chen guarantee contract disputes case is a very typical case and has been the selected into the Supreme Court's classic case collection. In this case, two controversial points were mainly discussed:First, whether CEB was entitled to the mortgage of the commercial housing. The essence of this point was that whether CEB has priority right to be repaid on the housing after the advance notice mortgage registration. Notice to registration of the mortgage is not stipulated for its force of law as well as its range of application.In theory, the notice to the registration of the mortgage can help the CEB to be entitled to claim the change of the mortgage, and it has the exclusive validity of real right against another person, but it's still a kind of creditor's rights. The notice to registration of mortgage is different from the mortgage right registration, it can't allow CEB to have the right of house real mortgage, so CEB don't have priority of compensation.Second, whether the guarantor. Donghe company, should bear joint satisfaction liability. The loan contract in this case was dissolved due to the purpose of the contract could not be achieved, according to item ten and forty one in Legal Interpretation By Guarantee Law, after the dissolution of the master contract(the loan contract), if it's not appointed in the contract that the guarantor don't need to bear liability to guarantee, Donghe company as a guarantor still should bear the warranty liability for the civil liability beared by its debtor. Donghe company and Miss Chen's behavior of cheating CEB harmed CEB's benefit as the creditor. The company and Miss Chen should return the obtained profits, which means that the guarantor Donghe company and debtor Miss Chen should bear joint satisfaction liability for the loan debt together.