Analysis Of The Judicial Application Of “credit New And Old” Mortgage Guarantee

"The new loan is also old" refers to the loan period has arrived,can not be repaid on time,and apply for money to repay the loan before the behavior.This phenomenon exists in a large number of credit areas,in the legal and judicial practice,because of the relevant laws of our country did not make restrictions or prohibitive provisions on the loan and guarantee the validity of the contract is more controversial.In September 29,2000,the judicial committee of the Supreme People's Court on the issues of People's Republic of China "guarantee law"(hereinafter referred to as "the interpretation of judicial interpretation of Guarantee Law"),acknowledged the"effectiveness of the new loan is old",although the explanation of its legality and legitimacy,but the lending behavior is concerned,there are two sides of the loan.Its positive aspect is not strictly limited by the statute of limitations,but also to further clarify the relationship between creditor and debtor,but also can require enterprises to improve security conditions,reduce the risk of loans.The negative side is in there may have adverse effects on social credit,played down the enterprises have also borrowed the concept of credit,but also may be a bank in the process of "the new old loan transaction negligence etc.,cause a large number of‘loan leads to the new old disputes,especially for the validity of mortgage the guarantee contract,when the court in such cases,the validity of the guarantee contract with a loan contract judgment may be different."Security law,judicial interpretation" thirty-ninth "new loans to the old"contract to ensure that people's responsibility to ensure a clear explanation,but for other security provisions of the mortgage is not clearly defined.But in real life,how to distinguish whether the surety knows or ought to know the true meaning of the people,which determine how,how to exercise the mortgage guarantee form is not clear,based on the "loan to the new old facts,the court,by the case leads to the related legal problems such as analysis,summed up the" new loan the old "feature and legitimacy," borrow new old "identification problem,focus on the analysis of the" loan to the new old mortgage mortgage set up time,the validity of the contract and the exercise of the right of mortgage,loan for the new old mortgage legal problems to further explore and study.