On February 25, 2022, the plaintiff Bank J provided the defendant Company S with a maximum comprehensive credit line of 2 million yuan. On the same day, the defendant Zhang and five other guarantors issued the Letter of Guarantee of Maximum Joint and Several Liability to the plaintiff J Bank, agreeing that the defendant Zhang and five other guarantors would provide the maximum joint and several liability guarantee for the loan of the defendant S Company, with a guarantee period of three years after the expiration of the debt performance period. On March 16, 2022, the Plaintiff Bank J (the lender) and the Defendant Company S (the borrower) signed the Popular Fund Loan Contract, which agreed that the loan amount was 2 million yuan and the loan period was from March 16, 2022 to March 15, 2023. After the loan was due, the defendant S Company failed to repay.

During the trial of the case, the defendant Zhang argued that the actual initial borrowing date of the loan involved in the case was March 17, 2018. Later, as the defendant S Company was unable to repay the loan, with the consent of the plaintiff J Bank, the new loan contract was renewed every year until March 2022 (the date of the loan contract in the case) by means of refinancing the loan, that is, repaying the old loan. On March 1, 2023, after the defendant S Company repaid the loan from Bank J, both parties signed a new loan contract again, and the defendant Zhang guaranteed the loan in the loan contract. Now the defendant Zhang believes that this loan is a new loan contract signed with Bank J after the defendant S Company borrowed funds from a third party enterprise to repay the loan it owed to Bank J before, and used the new loan to repay the funds borrowed from a third party enterprise. This act is a "bridge loan" way to "repay the old loan with the new loan". According to Article 16 of the Supreme Court's interpretation on the application of the Civil Code to the guarantee, if the creditor has no evidence to prove that the guarantor of the new loan knew about the repayment of the old loan when providing the guarantee, the guarantor shall not bear the guarantee liability according to law.

After hearing the case, the court of Qingjiangpu District held that repayment of old loans with new loans refers to the act of the creditor and the debtor signing a loan contract again to repay part or all of the old loans with the newly loaned funds when the old loans were not repaid. According to the statement of corporate account of Bank J provided by the defendant Zhang, the defendant S Company signed a new loan contract with the plaintiff J Bank again after paying off the previously owed principal and interest of the loan. After the contract was signed, the plaintiff J Bank issued the loan to the defendant S Company. This situation does not belong to new loan repayment of old loan. In addition, "bridge loan" means that the borrower borrows funds from other places to repay the old loan, and then uses the new loan to repay the borrowed funds from other places. It is a short-term loan and often needs to pay advance fees to a third party institution. In this case, the defendant Zhang claimed that Company S could "repay old loans with new loans" by means of "bridge loans", but he failed to prove that Company S had a borrowing behavior with a third party institution and that Company S had paid advanced fees to a third party institution in order to "cross the bridge", so the court did not accept the defendant Zhang's argument, and the defendant Zhang should continue to bear the guarantee responsibility for the loans owed by Company S.

The court ruled that the defendant Zhang assumed the guarantee liability within the guarantee scope.

[Judges' comments]

The focus of dispute in this case is whether the defendant Zhang claimed that whether the guarantee liability could be exempted by "bridge loan" to realize "new loan for old loan".

The first view is that "bridge loan" can really realize "new loan for old loan", which damages the rights and interests of the guarantor, makes the guarantor's judgment of the borrower's repayment ability wrong, and increases the guarantor's guarantee risk. The defendant Zhang claimed that exemption from guarantee responsibility should be supported.

The second view is that there are differences between "bridge loan" and "new loan for old loan", and the guarantor can also distinguish them through review, and "new loan for old loan" in the way of "bridge loan" is not the decisive factor to exempt the guarantor from the guarantee responsibility. In the case of "repayment of new loans to old loans", the exemption of the guarantor from the guarantee liability should also comply with the legal provisions, that is, the guarantor of the new loan is different from that of the old loan, or if the old loan is unsecured and the new loan is secured, and the creditor requests the guarantor of the new loan to assume the guarantee liability, the people's court will not support it. Therefore, a certain person in this case should continue to bear the guarantee liability. The author agrees with the second view for the following reasons:

First, there are differences between "bridge loan" and "new loan for old loan", which can be distinguished by the guarantor through review. "Repayment of old loans with new loans" means that the borrower is unable to repay the loan when it is due, and signs a new loan contract with the bank to repay the old loan with new loans. In this case, the bank does not actually issue loans to the borrower, and the bank statement does not show the flow of funds. "Bridge loan" is a short-term loan method with the intervention of a third party. The borrower cannot repay the bank loan on schedule, and chooses to borrow funds from a third party to repay the bank loan. Then, a new loan contract is signed with the bank to repay the funds borrowed from a third party with new loans. In this case, the funds will be displayed in the third-party account, And the borrower often needs to pay advance fees to a third party. The guarantor can distinguish "bridge loan" from "new loan for old loan" by whether there is a third party intervention, so as to reassess the borrower's repayment ability.

Second, it is necessary to integrate various factors to determine the "repayment of new loans to old loans". "Repayment of old loans with new loans" cannot be determined by several factors. It should be comprehensively determined whether the loan involved in the case belongs to the situation of "repayment of old loans with new loans" in combination with relevant evidence such as the purpose of the loan, the amount of the loan, the repayment time, the loan time, and the flow of funds. The defendant Zhang only identified "new loan for old loan" based on the fact that Bank J and Company S colluded with each other to make up the purpose of borrowing to cover up the "borrowing new loan for old loan", but the author believes that whether the "borrowing purpose" in the new and old loan contracts is related does not actually affect the essence of "borrowing new loan for old loan", as for "borrowing new loan for old loan" The identification of the loan is mainly based on the fact that whether the borrower can use the new loan to repay the old loan. In this case, Company S has repaid all the loans before signing the new loan contract. There is a clear boundary between the new loan and the old loan. The defendant Zhang should further prove the connection between the new loan and the old loan.

Third, "Repaying old loans with new loans" does not necessarily exempt the guarantee responsibility. Article 16 of the interpretation of the Supreme People's Court on the application of the relevant guarantee system of the Civil Code of the People's Republic of China: If the parties to the main contract agree to repay the old loan with the new loan, and the creditor requests the guarantor of the old loan to assume the guarantee liability, the people's court will not support it; If the creditor requests the guarantor of the new loan to assume the guarantee liability, it shall be handled according to the following circumstances: (1) If the guarantor of the new loan is the same as that of the old loan, the people's court shall support it. （2） The people's court will not support a new loan that is different from the guarantor of the old loan, or the old loan is unsecured and the new loan is secured, except that the creditor has evidence to prove that the guarantor of the new loan knew or should know the fact of repaying the old loan with the new loan when providing security. In this case, the defendant Zhang is the guarantor of the two loan contracts signed by Company S and Bank J successively, and the amount of the two loans has not changed, so the guarantor's guarantee liability has not been increased. Therefore, the defendant Zhang's claim for exemption from the guarantee liability lacks factual and legal basis.