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Does the Husband Guarantee Involve His Wife in the Lawsuit

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Does the Husband Guarantee Involve His Wife in the Lawsuit


        

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  • 2024-06-17 14:00:47

    In general, the wife will be involved in the prosecution of the husband's guarantee.

    When one party guarantees a third person within marriage, it assumes responsibility with the joint property of the husband and wife.

    According to the principle of consistency of rights and obligations, except for legal special circumstances, the debts of the husband or wife during the existence of the marriage relationship should belong to the joint debts of the husband and wife.

    There are two types of guarantees:

    1. General guarantee liability: when the debtor is unable to pay off the due debts, the guarantor shall bear the liability for him;

    2. Joint and several guarantee liability: when the debt is due for repayment, the creditor has the right to demand the debtor or guarantor to repay the debt.

    According to the law, the surety of a general suretyship has the right to refuse to assume suretyship liability to the creditor before the dispute over the main contract has not been tried or arbitrated and the debtor's property cannot be enforced according to law, except in one of the following circumstances:

    1. The debtor's whereabouts are unknown and there is no property available for enforcement;

    2. The people's court has accepted the debtor's bankruptcy case;

    3. The creditor has evidence to prove that the debtor's property is insufficient to perform all debts or loses the ability to perform debts;

    4. The guarantor waives the rights specified in this clause in writing.

    Legal basis

    Article 687 of the Civil Code of the People's Republic of China [General guarantor's right of defense in advance] Where the parties agree in the suretyship contract that if the debtor fails to perform the debt, the surety shall bear the suretyship liability, it is a general suretyship.
    The surety of a general suretyship shall have the right to refuse to assume suretyship liability to the creditor before a dispute over the principal contract has not been tried or arbitrated and the debtor's property cannot be enforced according to law, except in one of the following circumstances:
    (1) The debtor's whereabouts are unknown and there is no property available for enforcement;
    (2) The people's court has accepted the debtor's bankruptcy case;
    (3) The creditor has evidence to prove that the debtor's property is insufficient to perform all debts or loses the ability to perform debts;
    (4) The guarantor waives the rights specified in this clause in writing.

    Article 688 of the Civil Code of the People's Republic of China [Joint and several liability guarantee] A joint and several liability guarantee refers to a guarantee contract in which the parties agree that the guarantor and the debtor shall be jointly and severally liable for the debt.
    If the debtor of the joint liability guarantee fails to perform its due debts or any circumstance agreed by the parties occurs, the creditor may request the debtor to perform its debts, or request the guarantor to assume the guarantee liability within the scope of his guarantee.

    Article 1064 [Joint debt of husband and wife] of the Civil Code of the People's Republic of China [Joint debt of husband and wife] The debts incurred by the joint declaration of intention, such as the joint signature of both the husband and wife or the subsequent ratification of one of the husband and wife, and the debts incurred by one of the husband and wife in their personal name for the daily life needs of the family during the marriage relationship, belong to joint debt of husband and wife.
    The debts incurred by one of the husband and wife in their personal name during the existence of the marriage relationship in excess of the daily needs of the family are not joint debts of the husband and wife; However, unless the creditor can prove that the debt is used for the husband and wife's common life, production and operation, or based on the joint intention of the husband and wife.

    Hao***

    2024-06-17 14:00:47

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