中华人民共和国担保法英译本

　　Guaranty Law of the People's Republic of China

　　1995-06-30 Order of the President of the People's Republic of China No. 50

　　The Guaranty Law of the People's Republic of China, adopted at the 14th Meeting of the Standing Committee of the Eighth National People's Congress of the People's Republic of China on June 30, 1995, is hereby promulgated and shall enter into force as of October 1, 1995.

　　Jiang Zemin

　　President of the People's Republic of China

　　June 30, 1995

　　Content

　　Chapter 1 General Provisions

　　Chapter 2 Suretyship

　　Section 1 Suretyship and Surety

　　Section 2 Suretyship Contract and Modes of Suretyship

　　Section 3 Suretyship Liability

　　Chapter 3 Mortgage

　　Section 1 Mortgage and Mortgaged Property

　　Section 2 Mortgage Contract and Registration of Mortgaged Property

　　Section 3 Effect of Mortgage

　　Section 4 Enforcement of Mortgage Right

　　Section 5 Mortgage of Maximum Amount

　　Chapter 4 Pledge

　　Section 1 Pledge of Movables

　　Section 2 Pledge of Rights

　　Chapter 5 Lien

　　Chapter 6 Deposit

　　Chapter 7 Supplementary Provisions

　　Chapter 1 General Provisions

　　Article 1

　　This Law is enacted with a view to promoting the accommodation of funds and the circulation of commodities, ensuring the enforcement of creditor's rights and developing the socialist market economy.

　　Article 2

　　This Law is enacted with a view to promoting the accommodation of funds and the circulation of commodities, ensuring the enforcement of creditor's rights and developing the socialist market economy.

　　Article 3

　　In guaranty activities, the principles of equality, voluntariness, fairness, honesty and credibility shall be observed.

　　Article 4

　　Where a third party provides a guaranty to creditor for a debtor, the third party may require the debtor to provide him with a counter-guaranty. The provisions on guaranty in this Law shall apply to the counter-guaranty.

　　Article 5

　　A guaranty contract is an ancillary contract of the principal contract. If the principal contract is null and void, the guaranty contract shall be null and void, accordingly. Where it is otherwise agreed in the guaranty contract, such agreement shall prevail. If a guaranty contract is determined to be null and void, the debtor, the guarantor or the creditor who is in default shall bear civil liability according to their respective fault.

　　Chapter 2 Suretyship

　　Section 1 Suretyship and Surety

　　Article 6

　　Suretyship as used in this Law means an agreement pursuant to which a surety and a creditor agree that the surety shall perform the obligation or bear the liability according to the agreement, when the debtor fails to perform his obligation.

　　Article 7

　　A legal person, other organization or a citizen capable of assuming debts may act as a surety.

　　Article 8

　　No State organ may act as a surety, except in the case of securing loans, for onlending, from a foreign government or an international economic organization as is approved by the State Council.

　　Article 9

　　Institutions such as schools, kindergartens and hospitals established for purposes of public welfare, and public organizations may not act as a surety.

　　Article 10

　　Branches and functioning departments of an enterprise as a legal person may not act as a surety. If a branch of an enterprise as a legal person has a power of attorney from the legal person, it may provide a suretyship within the scope of authority.

　　Article 11

　　No organization or individual may compel a bank or another financial institution or an enterprise to provide a suretyship for another; a bank or another financial institution or an ente

rprise shall have the right to refuse to provide suretyship for another.

　　Article 12

　　Where there are two or more sureties for one obligation, the sureties shall undertake suretyship liability according to their proportion of suretyship agreed in the suretyship contract. In the absence of an agreement on the proportion of suretyship, the sureties shall be jointly and severally liable. The creditor may demand any one of the sureties to undertake all suretyship liability, and every surety shall have the obligation to ensure all of the creditor's rights. The surety who has undertaken the suretyship liability shall have the right of recourse against the debtor, or have the right to demand other sureties who are jointly and severally liable to discharge the proportion of obligations which they should respectively assume.

　　Section 2 Suretyship Contract and Modes of Suretyship

　　Article 13

　　A surety and a creditor shall conclude a suretyship contract in writing.

　　Article 14

　　A surety and a creditor may conclude separate suretyship contracts for a single principal contract, or may reach an agreement to conclude, to the extent of the maximum amount of claim, a single suretyship contract for loan contracts or for certain commodities transaction contracts which successively occur in a given period of time.

　　Article 15

　　A suretyship contract shall contain the following particulars: (1) the kind and amount of the principal claim guaranteed; (2) the time limit for the debtor to perform the obligation; (3) the modes of suretyship; (4) the scope of the suretyship guaranty; (5) the term of the suretyship; and (6) other matters the parties deem appropriate. If a suretyship contract does not contain all the particulars specified in the preceding paragraph, the particulars omitted may be added by amendment.

　　Article 16

　　The modes of suretyship include: (1) general suretyship; (2) suretyship of joint and several liability.

　　Article 17

　　A general suretyship refers to a suretyship contract wherein the parties agree that the surety shall undertake suretyship liability in case the debtor defaults. A general suretyship allows the surety to refuse to undertake suretyship liability towards the creditor before a dispute over the principal contract is tried or arbitrated and the obligations are not enforceable even after the debtor's assets have been seized according to law. A surety may not exercise the right provided in the preceding paragraph in any of the following circumstances: (1) The change of the debtor's domicile makes it extremely difficult for the creditor to have the debtor's obligation enforced; (2) A People's Court suspends the enforcement proceedings due to its acceptance of the debtor's bankruptcy case; or (3) The surety waives in writing the right provided in the preceding paragraph.

　　Article 18

　　A suretyship of joint and several liability refers to a suretyship contract wherein the parties agree that the surety and the debtor shall be jointly and severally liable. Where the debtor of a suretyship of joint and several liability defaults when the time limit for his performance of the obligation provided in the principal contract expires, the creditor may demand that the debtor perform his obligation, or demand that the surety undertake the suretyship liability within the scope of the suretyship agreement.

　　Article 19

　　In the absence of an agreed or explicitly agreed mode of suretyship, the parties shall bear the suretyship liability following the mode of a suretyship of joint and several liability.

　　Article 20

　　The surety of a general suretyship or a suretyship of joint and several liability shall enjoy the debtor's right of defense. Where a debtor waives his right of defense against the obligation, the surety shall still enjoy a right of defense. The right of defense mean

s a debtor's right to exercise his right of claim on legal basis against the creditor when the creditor seeks to enforce his rights.

　　Section 3 Suretyship Liability

　　Article 21

　　The scope of the suretyship guaranty includes the principal claim and the interest thereof, default fine, compensation for damage and expenses for enforcing the claim, unless the suretyship contract provides otherwise. In the absence of an agreed or explicitly agreed scope of the suretyship guaranty, the surety shall be liable for payment of all the above costs.

　　Article 22

　　If a creditor transfers, in accordance with law, his principal claim to a third party during the period of the suretyship, the surety shall continue to be bound by the suretyship contract within the scope of the original suretyship guaranty, unless the suretyship contract provides otherwise.

　　Article 23

　　Where a creditor permits a debtor to transfer his debts to a third party during the period of the suretyship, a consent in writing shall need to be obtained from the surety; the surety shall no longer be liable if the debts are transferred without his prior consent in writing.

　　Article 24

　　When a creditor and a debtor agree to alter the principal contract, they shall have to obtain the surety's consent in writing; the surety shall no longer be liable if the contract is altered without his prior consent in writing, unless the suretyship contract provides otherwise.

　　Article 25

　　If the surety of a general suretyship and the creditor have no agreement on the term of suretyship, the term of suretyship shall be six months from the date of maturity of the principal debts. Where the creditor neith

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