Viewpoint... After bankruptcy, the guarantor's debt stops interest-bearing dispute.
Published:
2023-07-18
引言：主债务人破产后，担保人之债是否停止计息，在《最高人民法院关于适用<中华人民共和国民法典>Prior to the introduction of the Interpretation of the Guarantee System, the prevailing view was that interest would not cease to accrue, but the interpretation of the guarantee system explicitly ceased to accrue interest. The debate over whether the guarantor's debt will cease to bear interest after bankruptcy continues. 1. Two Views Viewpoint 1: The principal debtor goes bankrupt and the secured debt ceases to bear interest. The main reasons are: First, according to Article 46 of the the People's Republic of China Bankruptcy Law, "Unmatured claims are deemed to be due when the bankruptcy petition is accepted. Claims with interest cease to accrue interest from the time the bankruptcy petition is accepted." It can be seen from the above-mentioned law that after the bankruptcy application of the principal debtor is accepted by the people's court, the principal debt ceases to accrue interest. According to the principle of the subordination of security, the guarantor's liability for security is limited to the principal obligation, so the secured obligation should also cease to accrue interest. Second, the security law provides that the guarantor has the obligation to compensate, and at the same time has the right to recover after compensation. If the principal debtor's debt stops interest, the guarantor's debt does not stop interest, the guarantor's compensation, will affect the exercise of the guarantor's right of recovery, the guarantor is more unfair. The Supreme Court (2019) Supreme Fa Min Shen No. 6453 case law expressed the above views. Viewpoint 2: The principal debtor is bankrupt and the secured debt does not cease to accrue interest. The main reasons are: First, the legislative purpose of interest-bearing claims to cease to accrue interest from the time the bankruptcy petition is accepted is not to waive the guarantor's guaranteed debt. Second, after the debtor's bankruptcy application is accepted, the interest-paying claim ceases to accrue interest is based on the special provisions of the law, not the creditor's voluntary exemption of that part of the interest. And the debt is eliminated by liquidation, set-off, withdrawal, exemption, and mixing, and the bankruptcy of the principal debtor is not the cause of the guarantee of the elimination of the debt. Third, the purpose of the guarantor's signing of the guarantee contract is to assume the debtor's obligation to replace the debtor's obligation to the creditor when the debtor is unable to pay off the debt, and the essence is to ensure that the creditor's claim can be fully and effectively paid off, which is the original intention of the parties to the contract to conclude the guarantee contract. Therefore, the guarantor's liability after the main debtor's bankruptcy does not violate the basic principle of the subordinate nature of the secured debt. The Supreme Court (2020) Supreme Fa Min Shen No. 1054 holds the above view. And on January 10, 2020, the Fifth Division of the Higher People's Court of Zhejiang Province issued to the Bankruptcy Trial Business Division of the People's Courts at all levels of the province an answer to the question of whether the guarantor ceases to accrue interest after the bankruptcy of the principal debtor, and copied the document to the Second Civil Division of the Supreme People's Court. The Fifth Civil Division of the Zhejiang Provincial High Court clearly stated in the document that in the bankruptcy proceedings: "The interest-bearing claims declared against the debtor cease to accrue when the bankruptcy petition is accepted. But the cessation of interest is not as effective as the guarantor." And the document also mentions that if the guarantor repays the debt on behalf of the principal debtor in the insolvency proceedings, when the guarantor declares the claim, "the administrator shall deduct the interest on the debt borne by the guarantor from the time the debtor's bankruptcy application is accepted or register the interest claim separately from the time the bankruptcy application is accepted." It can be seen that the view in the trial practice is biased towards the bankruptcy of the principal debtor and the guarantor's debt does not cease to accrue interest. Judicial Interpretation of the Supreme Court of 2. According to the Supreme People's Court on the application<中华人民共和国民法典>有关担保制度的解释》第二十二条规定：“人民法院受理债务人破产案件后，债权人请求担保人承担担保责任，担保人主张担保债务自人民法院受理破产申请之日起停止计息的，人民法院对担保人的主张应予支持。” 该解释明确担保人之债停止计息，但目前仍存在较大争议。有仲裁机构的仲裁裁决即没有采纳该司法解释的观点。 三、笔者观点 我国《企业破产法》第九十二条第三款规定:“债权人对债务人的保证人和其他连带债务人所享有的权利,不受重整计划的影响。”第一百零一条规定:“和解债权人对债务人的保证人和其他连带债务人所享有的权利,不受和解协议的景响。第一百二十四条规定:“破产人的保证人和其他连带债务人,在破产程序终结后,对债权人依照破产清算程序未受清偿的债权,依法继续承担清偿责任。”上述法条为保证的主从关系不受破产程序影响提供了依据。 笔者认为，在重整程序与和解程序中,不适用主债务减轻从债务不能减轻的理由是:债权人设立保证或者第三人连带之债的目的在于当债务人无力承担债务时,保证人或第三人对债务承担责任。破产法设置重整程序或和解程序后减轻债务人的责任,往往是以拯救企业为目的。如果在债务人进入重整程序或和解程序而减免保证人或第三人的责任就与债务设立的宗旨相违背。如果法律允许这种债务减免,那么保证人或连带债务人会和债务人串通来逃避债务。 另外，对保证人不停止计息，有利于提高偿债的效率。破产案件从债权申报到一定比例的清偿通常需要很长的时间。此时保证人停止计息,保证人可能不会积极地履行保证责任,在实践中，即使通过保证合同纠纷诉讼，债权人胜诉,保证人仍有可能拖延履行。但是,如果突破保证责任的从属性,保证人履行保证责任的积极性就不会因此而消失，这对保证人积极主动履行保证责任有促进作用。</中华人民共和国民法典></中华人民共和国民法典>
Introduction:Whether the guarantor's debt ceases to bear interest after the principal debtor becomes insolvent, in the Supreme People's Court's Decision on the Application of<中华人民共和国民法典>Prior to the introduction of the Interpretation of the Guarantee System, the prevailing view was that interest would not cease to accrue, but the interpretation of the guarantee system explicitly ceased to accrue interest. The debate over whether the guarantor's debt will cease to bear interest after bankruptcy continues.
1. Two Views
Viewpoint 1: The principal debtor goes bankrupt and the secured debt ceases to bear interest. The main reasons are:
First, according to Article 46 of the the People's Republic of China Bankruptcy Law, "Unmatured claims are deemed to be due when the bankruptcy petition is accepted. Claims with interest cease to accrue interest from the time the bankruptcy petition is accepted." It can be seen from the above-mentioned law that after the bankruptcy application of the principal debtor is accepted by the people's court, the principal debt ceases to accrue interest. According to the principle of the subordination of security, the guarantor's liability for security is limited to the principal obligation, so the secured obligation should also cease to accrue interest.
Second, the security law provides that the guarantor has the obligation to compensate, and at the same time has the right to recover after compensation. If the principal debtor's debt stops interest, the guarantor's debt does not stop interest, the guarantor's compensation, will affect the exercise of the guarantor's right of recovery, the guarantor is more unfair.
The Supreme Court (2019) Supreme Fa Min Shen No. 6453 case law expressed the above views.
Viewpoint 2: The principal debtor is bankrupt and the secured debt does not cease to accrue interest. The main reasons are:
First, the legislative purpose of interest-bearing claims to cease to accrue interest from the time the bankruptcy petition is accepted is not to waive the guarantor's guaranteed debt.
Second, after the debtor's bankruptcy application is accepted, the interest-paying claim ceases to accrue interest is based on the special provisions of the law, not the creditor's voluntary exemption of that part of the interest. And the debt is eliminated by liquidation, set-off, withdrawal, exemption, and mixing, and the bankruptcy of the principal debtor is not the cause of the guarantee of the elimination of the debt.
Third, the purpose of the guarantor's signing of the guarantee contract is to assume the debtor's obligation to replace the debtor's obligation to the creditor when the debtor is unable to pay off the debt, and the essence is to ensure that the creditor's claim can be fully and effectively paid off, which is the original intention of the parties to the contract to conclude the guarantee contract. Therefore, the guarantor's liability after the main debtor's bankruptcy does not violate the basic principle of the subordinate nature of the secured debt.
The Supreme Court (2020) Supreme Fa Min Shen No. 1054 holds the above view. And on January 10, 2020, the Fifth Division of the Higher People's Court of Zhejiang Province issued to the Bankruptcy Trial Business Division of the People's Courts at all levels of the province an answer to the question of whether the guarantor ceases to accrue interest after the bankruptcy of the principal debtor, and copied the document to the Second Civil Division of the Supreme People's Court. The Fifth Civil Division of the Zhejiang Provincial High Court clearly stated in the document that in the bankruptcy proceedings: "The interest-bearing claims declared against the debtor cease to accrue when the bankruptcy petition is accepted. But the cessation of interest is not as effective as the guarantor."
And the document also mentions that if the guarantor repays the debt on behalf of the principal debtor in the insolvency proceedings, when the guarantor declares the claim, "the administrator shall deduct the interest on the debt borne by the guarantor from the time the debtor's bankruptcy application is accepted or register the interest claim separately from the time the bankruptcy application is accepted."
It can be seen that the view in the trial practice is biased towards the bankruptcy of the principal debtor and the guarantor's debt does not cease to accrue interest.
Judicial Interpretation of the Supreme Court of 2.
According to the Supreme People's Court on the application<中华人民共和国民法典>Article 22 of the Interpretation on the Guarantee System stipulates: "After the people's court accepts the debtor's bankruptcy case, the creditor requests the guarantor to assume the guarantee liability, and the guarantor claims that the secured debt shall cease to bear interest from the date on which the people's court accepts the bankruptcy application, the people's court shall support the guarantor's claim."
The explanation makes it clear that the guarantor's debt ceases to bear interest, but it is still highly controversial. The arbitral award of an arbitral institution does not adopt the view of the judicial interpretation.
3. author's point of view
Article 92, paragraph 3, of China's Enterprise Bankruptcy Law stipulates: "The rights of creditors to the debtor's guarantors and other joint and several debtors shall not be affected by the reorganization plan." Article 101 states: "The rights enjoyed by the settlement creditor against the debtor's guarantor and other joint and several debtors shall not be affected by the settlement agreement. Article 124 stipulates: "The guarantor of the bankrupt and other joint and several debtors shall, after the conclusion of the bankruptcy proceedings, continue to be liable for the liquidation of the creditor's claims that have not been paid in accordance with the bankruptcy liquidation proceedings." The above-mentioned provisions provide a basis for ensuring that the principal-subordinate relationship is not affected by insolvency proceedings.
The author thinks that in the reorganization procedure and the reconciliation procedure, the reason why the main debt can not be reduced is that the creditor establishes the guarantee or the third party's joint debt is that when the debtor is unable to bear the debt, the guarantor or the third party is liable for the debt. The reduction of the debtor's liability after the establishment of reorganization or settlement proceedings by the insolvency law is often aimed at saving the business. It would be contrary to the purpose for which the debt was created to reduce the liability of the guarantor or third party when the debtor enters into reorganization or settlement proceedings. If the law allows such debt relief, the guarantor or joint debtor will collude with the debtor to avoid the debt.
In addition, the guarantor does not stop interest, which is conducive to improving the efficiency of debt service. Bankruptcy cases usually take a long time from the declaration of claims to a certain percentage of settlement. At this point the guarantor ceases to accrue interest, the guarantor may not actively perform the guarantee, in practice, even through the guarantee contract dispute litigation, the creditor wins, the guarantor may still delay performance. However, if the subordinate nature of the guarantee responsibility is broken, the enthusiasm of the guarantor to fulfill the guarantee responsibility will not disappear, which will promote the guarantor to actively fulfill the guarantee responsibility.
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