Abstract
Although the principal creditor’s rights involved in the case are entrusted to the trust company by the creditor as trust property, the trust company is only a nominal creditor, and the identity of the principal and the beneficiary as the substantive creditors has not been altered.
Collegial Bench for the Second Instance: Fubo Wang, Wei Li and Xuemei Zhang
Edited by Yi Yang; translated by Zhijian Cao
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Notes
- 1.
This article is now included as Article 545 of the Civil Code: “(a) creditor may assign his claim in whole or in part to a third person, except that: (1) a claim is not assignable by virtue of its nature; (2) a claim is not assignable as agreed by the parties; or (3) a claim is not assignable in accordance with law. Where the parties agree that a nonpecuniary claim may not be assigned, such agreement shall not be asserted against a bona fide third person. Where the parties agree that a pecuniary claim may not be assigned, such agreement shall not be asserted against a third person.” Infra.
- 2.
This article is now included as Article 687 of the Civil Code: “(w)here the parties agree in a guaranty contract that the guarantor shall undertake guaranty liability if the debtor is unable to perform his obligation, such a guaranty is a general guaranty. A guarantor in a general guaranty may refuse to undertake guaranty liability to the creditor before a dispute arising from the principal contract is adjudicated or arbitrated and where the debtor is still unable to fully perform the obligation after his assets have been enforced in accordance with law, unless one of the following circumstances occurs: (1) the whereabouts of the debtor have been unknown and there is no property available for enforcement; (2) the people's court has accepted the debtor's bankruptcy petition; (3) the creditor has evidence to prove that the debtor’s property is insufficient to perform all of the obligations or the debtor loses his capacity to perform the obligation; or (4) the guarantor waives his right provided in this paragraph in writing.” Infra.
- 3.
This article is now included as Article 686(2) of the Civil Code: “(w)here there is no agreement in the guaranty contract on the form of the suretyship or the agreement is unclear, the guarantor shall bear the liability as in the form of a general guaranty.”
- 4.
This article is now included as Article 692 of the Civil Code: “(t)he term of guaranty is the period during which the guarantor shall undertake guaranty liability, and such period shall not be suspended, interrupted, or extended. A creditor and a guarantor may agree on the term of guaranty. However, where the expiration date of the agreed term of guaranty is earlier than or the same as the expiration time for performance of the principal obligation, it is deemed as there is no agreement on the term of guaranty. Where there is no agreement between the parties on the term of guaranty or the agreement is unclear, the term of guaranty shall be six months from the date of expiration of the time limit for performance of the principal obligation. Where a creditor and a debtor fails to agree on the time limit for performance of the principal obligation or the agreement is unclear, the term of guaranty shall be counted from the date when the grace period for the creditor to request the debtor to perform the obligation expires.” Infra.
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Zhang, X. (2022). Lin X v. Tianjin Jiuding Industrial Development Co., Ltd., Jiali Jingsheng (Tai'an) Real Estate Co., Ltd., et al.. In: Selected Cases from the Supreme People’s Court of the People’s Republic of China. Library of Selected Cases from the Chinese Court. Springer, Singapore. https://doi.org/10.1007/978-981-16-8410-4_9
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DOI: https://doi.org/10.1007/978-981-16-8410-4_9
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