It is a matter of natural justice to repay debts. When both parties establish the relationship of creditor's rights and debts, the debtor can ask the third party to provide guarantee to guarantee the smooth performance of the creditor's rights and debts of both parties. Some debtors may not be able to pay back the money, so can we sue the guarantor for the money owed?
In debt disputes, the guarantor shall bear joint and several liability. That is: when the debtor is unable to repay the debt, the guarantor needs to repay the debtor's debt to the creditor first, and then the guarantor can recover from the debtor.
According to Article 16 of the guarantee law of the people's Republic of China, there are two kinds of guarantee methods for guarantee contract disputes: general guarantee and joint and several liability guarantee. For general guarantee, according to Article 17 of the guarantee law of the people's Republic of China: 'the guarantor of general guarantee has not been tried or arbitrated in the main contract disputes, and is enforced according to law on the debtor's property If the plaintiff only sues the guarantor, the guarantor shall have the right of plea in advance. For joint and several liability guarantee, according to Article 53 of the opinions of the Supreme People's Court on Several Issues concerning the application of the Civil Procedure Law of the people's Republic of China, the people's court shall list the guarantor and the guaranteed as joint defendants if the creditor claims the right to both the guarantor and the guaranteed in the lawsuit brought due to the dispute over the guarantee contract; If the creditor only sues the guarantor, the people's court shall notify the surety to participate in the litigation as a joint defendant, except that the surety shall bear joint liability as expressly stipulated in the suretyship contract; if the creditor sues only the surety, it may only list the surety as the defendant. '
There are five ways of contract guarantee:
(1) Suretyship refers to the behavior that the surety and the creditor agree that when the debtor fails to perform the debt, the surety shall perform the debt or bear the responsibility according to the agreement.
(2) Mortgage means that the debtor or a third party does not transfer the possession of the property and takes the property as the guarantee of the creditor's rights. When the debtor fails to perform his obligation, the creditor shall have the right to convert the property into money or pay priority to the proceeds from auction or sale of the property in accordance with the provisions of the security law.
(3) Pledge means that the debtor or a third party transfers its chattel or right certificate to the creditor for possession, and takes the chattel or right as the guarantee of the creditor's right. When the debtor fails to perform his obligation, the creditor shall have the right to convert the movable property or right into value in accordance with the provisions of the security law, or to be paid preferentially from the price of auction or sale of the movable property or right.
(4) A certain amount of money paid before a contract is concluded or performed as security. The party who pays the deposit is called the party who pays the deposit, and the party who receives the deposit is called the party who receives the deposit.
(5) Lien means that, in accordance with the provisions of the law, the creditor occupies the debtor's movable property in accordance with the contract, and if the debtor fails to perform the debt within the time limit stipulated in the contract, the creditor has the right to retain the property in accordance with the provisions of the security law, and convert or auction the property.