担保法解释.docx

1、担保法解释担保法解释各位读友大家好，此文档由网络收集而来，欢迎您下载，谢谢篇一：担保法司法解释英文 (Adopted by the Judicial Committee of the Supreme Peoples Court at its Conference on September 29, 2000) For the purpose of ensuring the correct application of the Guarantee Law of the Peoples Republic of China (hereinafter referred to as “the Guaran

2、tee Law”), based on the judicial practice and experience, the following interpretations have been made concerning the application of laws while the peoples courts are handling the guarantee disputes . Part IInterpretation of General Principles Article 1A guarantee created by the parties for the cred

3、itors rights arising from civil relations may be considered valid if it conforms to the forms stipulated in the Guarantee law and does not violate any compulsory provision in laws and regulations. Article 2Counter-guarantee provider may be the debtor or some other parties. The form of counter-guaran

4、tee may be mortgage or pledge offered by the debtor, or guarantee, mortgage or pledge offered by some other parties. Article 3Where any state organ or any institution, social organization for the public good violates laws to provide guarantee, the guarantee contract shall be invalid. And it shall be

5、 punished pursuant to Article 5 (2) of the Guarantee Law if any loss is caused to the creditors. Article 4Where any director or manager violates Article 60 of the Company Law of the Peoples Republic of China to provide guarantee for the debt of the companys shareholders or other persons, the guarant

6、ee contract shall be invalid. The debtor and the guarantee provider shall bear joint compensation liability for creditors loss unless the creditor knows or should know about the fact. Article 5Where a guarantee is created with the property that is prohibited by laws and regulations from circulating,

7、 or is not transferable, the guarantee contract shall be invalid. Where a guarantee is created with the property restricted by laws and regulations from circulating, the peoples court shall dispose of the property to realize the creditors rights in accordance with relevant laws and regulations.Artic

8、le 6The foreign guarantee contract shall be invalid under any of the following circumstances: 1. a foreign guarantee is provided without the approval or registration by relevant competent departments; 2. the guarantee is provided to domestic creditors for oversea organs without approval or registrat

9、ion by relevant competent departments; 3. the guarantee is offered to secure the registered capital of a foreign-invested enterprise or the foreign partys external debt of its investment in a foreign-invested enterprise; 4. a foreign exchange guarantee is provided by a financial organ whose business

10、 scope does not include foreign exchange guarantees, or by a non-financial enterprise legal person without foreign exchange income; 5. the guarantee provider will not bear any responsibility if the principal contract is altered or the creditor transfers the right of a foreign guarantee contract with

11、out consent of the guarantee provider or approval of relevant competent departments, unless it is otherwise provided by in laws and regulations. Article 7The guarantee provider and the debtor shall assume joint compensation liability for the creditors loss on the condition that the principal contrac

12、t is valid while the guarantee contract is invalid and the creditor is not in fault. If the creditor and the guarantee provider are both in fault, the civil liability that the guarantee provider should assume shall not exceed half of that that the debtor cant pay off. Article 8If the guarantee contr

13、act is invalid due to the invalidity of the principal contract and the guarantee provider is not in fault, he shall not assume any civil obligation. If the guarantee provider is in fault, he shall bear not more than one third of the obligation that cant be fulfilled by the debtor. Article 9The guara

14、ntee provider may have recourse against the debtor after assuming compensation liability to the creditor in the case of invalid guarantee contract. The guarantee provider may also require the counter-guarantee provider in fault to bear the liability within the compensation scope.The guarantee provid

15、er may bring a lawsuit against the debtor or the counter-guarantee provider on the basis of the fact that the compensation has been made. Article 10After termination of the principal contract, the guarantee provider shall still be liable to the debtor for the latters civil obligation unless it is ot

16、herwise stipulated by the guarantee contract. Article 11The act of concluding a guarantee contract by the legal representative or person in charge of a judicial person or other organizations beyond their purview of authorization shall be valid, except when the counter party knows or should know about such fact. Article 12The period of guarantee agreed upon by the parties or required