In the private lending, the common form of guarantee is generally two kinds of guarantee, a guarantee guarantee, a mortgage guarantee.
1, about guarantee.
Guarantee refers to the guarantor and the creditor agreed, when the debtor does not fulfill the debt, the guarantor in accordance with the agreement to perform the debt or liability behavior. The scope of the guarantee generally includes the main claim and interest, liquidated damages and the cost of realizing the claim. Guarantee guarantee is divided into general guarantee and joint and several guarantee two kinds. Where there is no special agreement in the guarantee, the guarantor in accordance with the joint and several guarantee responsibility. The difference between the two kinds of guarantee mainly lies in when to claim rights to the guarantor. In terms of private lending, the general situation is the establishment of joint and several guarantee, as long as the guarantor has the ability to fulfill the debt, the lender basically will be able to realize the claim.
In the private lending, often occurs with the guarantee of the error is confused with the concept of the guarantor and the intermediary, in fact, there is an essential difference between the two. Guarantor future performance of the debt to bear legal responsibility, while the intermediary only plays the role of introduction, witness, future performance of the debt is not responsible. If the loan contract in the wrong use of the above two names, in law will produce two diametrically opposed consequences.
Set a guarantee of the claim, the claim expires must not forget to claim the right to the guarantor, because the guarantee is bound by the statute of limitations, such as the Civil Code (2021.1.1 effective), Article 692: "The creditor and the guarantor can agree on the guarantee period, but the agreed guarantee period earlier than the main debt fulfillment term or with the main debt fulfillment term If it expires at the same time, it is deemed that there is no agreement; if there is no agreement or the agreement is unclear, the guarantee period shall be six months from the date of expiration of the period for fulfillment of the principal debt." Therefore, the timely assertion of rights, is also a way to realize the claim for protection.
2, about the mortgage.
Mortgage refers to the debtor does not transfer possession of the property, but the property as a security for the claim. The common mortgages for private lending are generally vehicles and houses, and our laws have clear provisions for mortgages of these two kinds of property. Article 403 of the Civil Code (effective 2021.1.1) The Effectiveness of Mortgages on Movable Property Where a mortgage is made on movable property, the mortgage right shall be established from the time the mortgage contract takes effect; without registration, it shall not be opposable to a bona fide third party. In reality, it is often the case that the lender has invalidated the mortgage contract because it has not requested the secured party to go through the mortgage registration procedures. According to the relevant judicial interpretations, in the main contract (lending contract) is valid and the mortgage contract is invalid, the creditor is not at fault, the guarantor and the debtor of the main contract creditor's economic loss, bear joint and several liability; creditor, the guarantor is at fault, the guarantor to bear the civil liability of the part of the part of the debtor can not be liquidated shall not be more than one-half of the part of the debtor. It can be seen, private lending in the adoption of collateral security must be in accordance with the provisions of the law to perform the relevant procedures, to avoid the invalidity of the security contract and the loss of the full realization of the claim, suffer unnecessary losses.
Mortgage registration procedures are required, in addition to vehicles and houses, land use rights, forests, aircraft, ships, and enterprise equipment and movable property and so on. It should also be noted that not all property can be set mortgage, such as land ownership, residential land, property that has been legally detained, supervision, seizure, schools, kindergartens, hospitals and other public welfare institutions, social organizations, educational facilities, medical and health care facilities and other public welfare facilities and other property shall not be mortgaged.
Mortgage is the most popular form of security, with the title of King of Guarantees, if the debtor does not fulfill the debt, the security right holder can realize their security right.