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发信人: quakefans (王伟是我偶像), 信区: CL
标 题: 《担保法》英文版
发信站: 荔园晨风BBS站 (Sun Oct 14 11:41:35 2001), 转信
THE GUARANTEE LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(Effective Date：1995.10.01--Ineffective Date：)
CHAPTER 1 GENERAL PROVISIONS CHAPTER 2 GUARANTEE SECTION 1 GUARANTEE
AND GUARANTOR SECTION 2 GUARANTEE CONTRACT AND MODES OF GUARANTEE
SECTION 3 GUARANTEE RESPONSIBILITIES CHAPTER 3 MORTGAGE SECTION 1
MORTGAGE AND OBJECTS OF PLEDGE SECTION 2 MORTGAGE CONTRACTS AND
REGISTRATION OF OBJECTS OF PLEDGE SECTION 3 THE EFFECTS OF MORTGAGE
SECTION 4 THE REALIZATION OF MORTGAGE RIGHTS SECTION 5 MAXIMUM MORTGAGE
CHAPTER 4 HYPOTHECATION SECTION 1 MOVABLE PROPERTY HYPOTHECATION
SECTION 2 RIGHTS OF HYPOTHECATION CHARTER 5 LIEN CHAPTER 6 DEPOSIT
APPENDIX
Article 1 This law has been formulated to promote the circulation of
funds and commodities, ensure the realization of creditors' rights
and thus advance the development of the socialist market economy.
Article 2 Act of guarantee can be established in accordance with this
law whenever creditors require to safeguard the realization of
their rights in such economic activities as debit and credit,
selling and purchasing, commodities transport and contracted
processing.
The means of guarantee stipulated by this law are guarantee, mortgage,
hypothecation, lien and deposits.
Article 3 Acts of guarantee shall be conducted under the principles of
equality, voluntariness, fairness and mutual trust.
Article 4 In providing guarantee to a creditor for a debtor a third
party may demand counter-guarantee from the debtor.
This law also applies to counter-guarantee.
Article 5 A guarantee contract should be subordinated to the principal
contract. When the principal contract is nullified, the
guarantee contract should also become invalid. Otherwise, should
there be some arrangements stipulated in the guarantee contract,
those arrangements shall be followed instead.
After the nullification of the guarantee contract, mistakes, if any, of
the debtor, guarantor or creditor, shall be affixed with due
civil responsibilities.
SECTION 1 GUARANTEE AND GUARANTOR
Article 6 Guarantee referred to in this law means the acts of a
guarantor to pay the debts or assume the responsibility under
an agreement between the guarantor and the creditor, in case the
debtor fails to pay the debts,
Article 7 Legal persons, other organizations or citizens that have the
capacity to pay off debts can act as guarantors.
Article 8 State organs cannot act as guarantors, except for sub-lending
of loans from foreign governments or international
economic organizations.
Article 9 Schools, kindergartens, hospitals and other institutions or
social groups cannot act as guarantors.
Article 10 Branches and functional departments of enterprise legal
persons cannot act as guarantors.
Branches of enterprise legal persons, with the legal person's written
empowerment, can offer guarantee within the authorized areas.
Article 11 No units or individuals shall force financial institutions
such as banks or enterprises to offer guarantee; banks and
other financial institutions and enterprises have the right to refuse
forced demands for guarantees.
Article 12 If one debt has more than two guarantors, the guarantors
shall share their responsibility of guarantee in accordance with
the arrangements laid down in the guarantee contract. If there
are no arrangements on the share of guarantee responsibility, the
guarantors shall assume joint responsibility and the creditor can
demand any one of the guarantors to pay the whole debt; and any of the
guarantors has the obligation to pay the total of the debt. The
guarantor who has paid the debt has the right to seek compensations
from the debtor, or demand other guarantors who have joint
responsibility to pay their share.
SECTION 2 GUARANTEE CONTRACT AND MODES OF GUARANTEE
Article 13 A guarantor and the creditor shall enter into a written
guarantee contract.
Article 14 A guarantor and the creditor may enter into separate
guarantee contracts for a specific principal contract. They can
also make a guarantee contract that sets a maximum amount and covers
several loans contracts during a certain period, or covers certain
commodity transactions.
Article 15 The guarantee contract shall include the following
information:
1. The categories and sums of the principal creditor's rights
guaranteed;
2. The deadline for the debtor to pay the debt;
3. The mode of guarantee;
4. The range covered by the guarantee;
5. The duration of the guarantee;
6. Other information deemed necessary by the signatories.
Guarantee contracts that do not fully comply with the requirements set
in the previous paragraph may be revised.
Article 16 There are two modalities of guarantee:
1. Ordinary guarantee;
2. Joint responsibility guarantee.
Article 17 Ordinary guarantee refers to the arrangement in the guarantee
contract that the guarantor assumes guarantee responsibility when
the debtor fails to pay the debt.
A guarantor under the arrangements of ordinary guarantee may refuse the
creditor's demand of assuming guarantee responsibilities before
the principal contract undergoes judicial or arbitrary procedures
and that the debtor remains incapable of paying the debt
despite mandatory implementation against his properties.
A guarantor cannot exercise the rights laid down in the previous section
in one of the following occasions:
1. The debtor changes its residence, resulting to major difficulty for
the creditor to request the debtor to pay the debt;
2. The implementation procedure is suspended when the people's court
accept and hear the debtor's bankruptcy case;
3. The guarantor gives up the responsibilities laid down in the previous
paragraph through means of a written document.
Article 18 Joint responsibility guarantee refers to the arrangements
laid down in the guarantor contract that the guarantor and the
debtor assume joint responsibility over the debts.
When the deadline as set on the principal contract is passed and the
debtor with joint guarantee responsibilities fails to pay the debts,
the creditor may demand the debtor to pay the debts or demand the
guarantor to assume guarantee responsibilities within the range
set in the contract.
Article 19 When there is no arrangement or there is unclear arrangement
on the modality of guarantee, the debtor and the guarantor shall
assume joint guarantee responsibility.
Article 20 A guarantor involved in either ordinary guarantee or joint
responsibility guarantee has the right of counterplea. The
guarantor still has the right to counterplea even if the debtor
gives up the right to counterplea.
The right to counterplea refers to the debtor's right to counter
creditor's right to request according to statutory particulars of
the matter, when the latter exercises its creditors' rights.
SECTION 3 GUARANTEE RESPONSIBILITIES
Article 21 The range of guarantee includes the principal debts and their
interest, default fine, damage awards and expense for the realization
of the creditors' rights. Should there be other arrangements
in the guarantee contract, those arrangements shall be followed
instead.
If there is no arrangement or there is unclear arrangement on the range
of guarantee, the guarantor shall assume full responsibility over
the total debts.
Article 22 During the period of the guarantee, when the creditor
transfers the principal creditors' rights to a third party according
to legal procedures, the guarantor shall continue to assume
guarantee responsibilities over the range as set under the
original guarantee contract. Should there be other arrangements set
in the contract, those arrangements shall be followed instead.
Article 23 During the duration of the guarantee, when the debtor, with
the approval of the creditor, transfers the debt, the transfer
shall require a written approval from the guarantor. The guarantor
assumes no more guarantee responsibilities over debts transferred
without its approval.
Article 24 When the creditor and the debtor changes the principal
contract, they shall have beforehand the written approval from
the guarantor. The guarantor assumes no more guarantee
responsibilities if the change is made without its approval. If there
are other arrangements in the guarantee contract, those
arrangements shall be followed instead.
Article 25 For ordinary guarantee activities without arrangements on the
duration of the guarantee, the duration shall be six months
following the date of the expiration of the principal debts.
During the duration as set in the guarantee contract or that described
in the previous paragraph, if the creditor fails to file litigation
or arbitration requests, the guarantor shall be exempt from
guarantee responsibilities; if the creditor has filed litigation or
arbitration requests, the duration of guarantee follows the
procedures on suspension prescribed period for litigation.
Article 26 If no arrangements on the duration of guarantee are made
between the creditor and the guarantor with joint
guarantee responsibilities, the creditor has the right to request
the guarantor to assume the guarantor right during the six months
since the end of the execution period of the principal debt.
During the period of the guarantee and the period as stated in the
previous paragraph, if the creditor fails to request the guarantor
to assume guarantee responsibilities, the guarantor can be exempt
from guarantee responsibilities.
Article 27 If the guarantor guarantees several consecutive debts, as
described in Article 14 of the this law, and there are no
arrangements on the duration of guarantee, the guarantor may notify
the creditor of the termination of the guarantor contract through
means of a written document at any time, but the guarantor has
to assume guarantee responsibilities over the creditors'
rights incurred before the time when the creditor receives the
written notification.
Article 28 If the same creditor's rights has both guarantee and real
security, the guarantor assumes guarantee responsibilities over
the creditor's right other than guaranteed by real security.
If a creditor gives up the real security, the guarantor will be exempt
from the guarantor rights over the rights that the creditor gives
up.
Article 29 If the branches of enterprise legal persons enter into
guarantee contracts without the written empowerment of the
enterprise legal person concerned or exceeding the empowerment of
the enterprise legal person, the guarantee contract or those
parts of the guarantee contract that exceed the empowerment
shall be nullified. If both the creditor and the enterprise
legal person commit mistakes, they shall assume due civil
responsibilities in accordance with their mistakes; if the creditor
makes no mistakes, the enterprise legal person shall assume civil
responsibilities.
Article 30 A guarantor assumes no civil responsibilities in the
following two occasions:
1. The parties to the principal contract collaborate to cheat the
guarantor into giving guarantees;
2. The creditor of the principal contract, through means such as fraud
and coercion, prompts the guarantor to give guarantee in violation
of the true conditions.
Article 31 The guarantor, after assuming the guarantee responsibilities,
is entitled to seek recompensation.
Article 32 When a people's court accepts and listens to the debtor's
bankruptcy case, if the creditor fails to submit its creditor's
rights, the guarantor may participate in the distribution of the
bankrupt properties and exercise the right of being recompensated in
advance.
SECTION 1 MORTGAGE AND OBJECTS OF PLEDGE
Article 33 The mortgage described in this law refers to the act of the
debtor, or the third party, who, without transferring the ownership
of the properties as listed in Article 34 of this law, sets
those properties as guarantee to the creditor's rights. When the
debtor fails to pay the debt, the creditor has the right to get
compensation, in accordance with the stipulations of this law,
by converting the properties into money or seek preferential
payments from the proceeds from the auction or sales of the
properties concerned.
The debtor or the third party referred to in the previous paragraph is
the mortgagor; the creditor is the mortgagee; and the properties
used for guarantee is object of pledge.
Article 34 The following properties can be used as mortgages:
1. The buildings and other fixed objects on the ground owned by the
mortgagor;
2. The machines, transport means and other properties owned by the
mortgagor;
3. State-owned land use rights, buildings and other fixed objects on the
ground that the mortgagor has the right to dispose of according to
law;
4. State-owned machines, transport means and other properties that the
mortgagor has the right to dispose of according to law;
5. Land use rights of barren hills, ravines, shoals and other wastelands
the mortgagor legally contracted, with the approval of the party
that issued the contract;
6. Other properties that can be mortgaged according to law.
The mortgagor may at once mortgage all the properties listed in the
previous paragraph.
Article 35 The creditor's rights that the mortgagor mortgaged shall not
exceed the value of the properties mortgaged.
After being mortgaged, the balance of value of the properties that
exceeds the creditor's rights can be mortgaged for a second time,
but the sum of the mortgage shall not exceed the value of the
balance.
Article 36 If legally-acquired buildings on State-owned lands are
mortgaged, the land use rights of the land occupied by the
buildings shall also be mortgaged at the same time.
The land use rights of State-owned lands acquired through means of
transfer, when being mortgaged, the buildings on the land shall also
be mortgaged at the same time.
The land use rights per se of the township and village enterprises
cannot be mortgaged. When the buildings of the township and
village enterprises are mortgaged, the associated land use rights
shall also be mortgaged at the same time.
Article 37 The following properties shall not be mortgaged:
1. The ownership of lands;
2. The land use rights of farmlands, house sites, lands and hills
allotted for personal needs and other collective-owned lands
except those listed in Section 5 of Article 34 and the third
paragraph of Article 36.
3. Educational, medical and other public welfare facilities of schools,
kindergartens, hospitals and other institutions and social groups
with the aim of benefiting the public;
4. Properties whose ownership and use rights are unclear or
controversial;
5. Properties that are legally confiscated, seized or controlled;
6. Other properties that cannot be mortgaged according to law.
SECTION 2 MORTGAGE CONTRACTS AND REGISTRATION OF OBJECTS OF PLEDGE
Article 38 The mortgagor and the mortgagee shall enter into a written
mortgage contract.
Article 39 The mortgage contract shall include the following
information:
1. The varieties and sum of the principal creditor's rights guaranteed;
2. The deadline for the debtor to pay the debt;
3. The description, amount, quality, condition, site, ownership or
ownership of use right of the objects of pledge;
4. The range of mortgage guarantee;
5. Other arrangements deemed necessary by the signatories.
Mortgage contracts that do not fully comply with the requirements set in
the previous paragraph may be revised.
Article 40 When entering into a mortgage contract, the mortgagee and the
mortgagor should not arrange to transfer the ownership of the objects
of pledge to the creditor when the deadline for debt repayment
passes but the mortgagee has not yet repaid the debt.
Article 41 The objects of pledge shall be registered when falling into
the categories listed in Article 42 and the mortgage contract goes
into effect as of the date of registration.
Article 42 The departments that handle the registration of objects of
pledge are as follows:
1. If the right of use of lands with no fix objects on them are
mortgaged, the registration shall be handled by the land
administration departments that verify and issue land use right
certificates;
2. If urban real estates or buildings of township and village
enterprises are mortgaged, the registration shall be handled
by departments designated by local governments above the level of
counties;
3. If forest trees are mortgaged, the registration shall be handled by
forestry administration departments above the level of counties;
4. If aircrafts, ships and vehicles are mortgaged, the registration
shall be handled by departments registering means of transportation;
5. If equipment and other movable properties are mortgaged, the
registration shall be handled by the local industrial and
commercial administration departments.
Article 43 If other properties are mortgaged, the parties involved can
voluntarily register the objects of pledge and the mortgage
contract goes into effect as of the date of the registration.
If the parties don't register the objects of pledge, they shall not
confront the third parties. When the parties register the objects
of pledge, the registration shall be handled by the local public
notary organs.
Article 44 In registrating the objects of pledge, the following
documents or their duplicates shall be presented:
1. The principal contract and the mortgage contract;
2. Certificates of ownership of right of use of the objects of pledge.
Article 45 The data in the registration departments shall be allowed to
consult, copied or duplicated.
SECTION 3 THE EFFECTS OF MORTGAGE
Article 46 The range of mortgage guarantee includes the principal
creditor's rights and interest, default fines, damage awards and
the expense for the realization of the mortgage rights. Should
there be other arrangements in the mortgage contract, those
arrangements shall be followed instead.
Article 47 When a debtor fails to repay the debt upon the expiration of
the deadline of the debt payment with the result that the people's
court seizes the objects of pledge according to law, the mortgagee, as
of the date of the seizure of the objects of pledge, may collect
the natural derivatives from the objects of pledge as well as the
legal derivation that the mortgagor can collect from the objects of
pledge. If the mortgagee fails to notify the legal derivatives'
obligator the seizure of the objects of pledge, the effects of the
mortgage rights will not include the derivatives.
The derivatives described in the previous paragraph shall be first used
to compensate the expense for collecting the derivatives.
Article 48 If a mortgagor mortgages properties that have been leased
out, the mortgagor shall notify the lease of the action with a
written statement and the original lease contract continues to be
valid.
Article 49 During a mortgage, when the mortgagor has to transfer the
registered objects of pledge, the fact that the properties and
mortgaged should be notified to the mortgagee as well as the
transferee; If the mortgagor fails to notify the mortgagee or
inform the transferee, the transfer is invalid.
If the purchase price of the transferred objects of pledge is obviously
lower than their current value, the mortgagee can request the
mortgagor to provide corresponding guarantee; If the mortgagor refuse
to provide guarantee, the objects of pledge cannot be transferred.
The money incurred from the transfer of he objects of pledge by the
mortgagor shall first be used to pay the creditor in advance
the guaranteed creditor's rights or to be drawn by the third
party as arranged by the mortgagee. The value exceeding the
creditor's rights belongs to the mortgagor and the balance due shall
be paid off by the debtor.
Article 50 The mortgage rights cannot be separated from the creditor's
rights and be transferred or used as guarantee of other
creditor's rights.
Article 51 Should the acts of a mortgagor result in a reduction of the
value of the objects of pledge, the mortgagee has the right to
request the mortgagor to cease such acts. If the value of the
objects of pledge are reduced, the mortgagee has the right to
request the mortgagor to restore the value of the objects of
pledge, or provide guarantee equal to the reduced values of the
objects of pledge.
If the mortgagor is not responsible for the reduction of value of the
objects of pledge, the mortgagee can only seek guarantee within
the reimbursement acquired by the mortgagor from the damages. The
parts of the objects of pledge whose values are not reduced shall
remain as guarantee of the creditor's rights.
Article 52 The mortgage rights and the creditor's rights guaranteed by
the mortgage rights exist at the same time. When the creditor's
rights perish, so do the mortgage rights.
SECTION 4 THE REALIZATION OF MORTGAGE RIGHTS
Article 53 When the deadline of a debt payment expires, the mortgagee
can be paid off, with the agreement of the mortgagor, by converting
the value of objects of pledge into money or by proceeds acquired
through an auction, or sales of the objects; If the mortgagor and
the mortgagee fail to reach an agreement, the mortgagee can file
litigation with the people's court.
If there is a surplus of the money through conversion or the proceed
through an auction or sales of objects of pledge in exceed of the sum
of the creditor's rights, such surplus shall belong to the
mortgagor, and the balance due shall be repaid by the mortgagor.
Article 54 If the same piece of property is mortgaged to two creditors,
the proceeds incurred from the auction or sell-off of the objects
of pledge shall be cleared according to the following stipulations:
1. If the mortgage contracts are registered and effective, the clearing
shall be undertaken in accordance with the order of the registration
of the objects of pledge; If the order is the same, the clearing
shall be undertaken in accordance with the proportion of the
creditor's rights.
2. If the mortgage contracts enter into effect as of the dates of the
signature, when the objects of pledge are registered, the clearing
shall be undertaken in accordance with procedures as set in part 1
of this article; When the objects of pledge are not registered,
the clearing shall be undertaken in accordance with the order of
the first effective day of the contracts (if the first day is the
same, the clearing shall be undertaken in accordance with the
proportion of the creditor's rights). The objects of pledge
registered shall be cleared before those not registered.
Article 55 Buildings constructed after the signature of the mortgage
contract on the lands of urban real estates mortgaged are not objects
of pledge. When the mortgaged real estate needs to be auctioned
according to law, the newly-constructed buildings can be auctioned
together with the mortgaged objects of pledge, but the mortgagee
does not have the mortgaged objects to be paid off with the
proceeds incurred from the auction of the newly-constructed
buildings.
If the use rights of contracted wastelands or of the lands occupied by
buildings of township and village enterprises are mortgaged
in accordance with this law, the lands' nature of collective
ownership and the usage of the lands shall not be changed without
legal procedures after the realization of the mortgage rights.
Article 56 A mortgagee has the preferential rights to be paid off with
the proceeds incurred from the auction of the land use rights
of transferred State-owned lands after paying the corresponding
transfer fee of the land use rights according to law.
Article 57 A third party which guarantees the debtor's mortgages, after
the realization of the mortgage rights by the mortgagee, has the
right to seek compensation from the debtor.
Article 58 The mortgage rights perish when the objects of pledge perish.
The damage awards incurred from the extermination shall be used
as mortgages.
Article 59 The maximum mortgage in this law refers to an agreement
between the mortgagor and the mortgagee to use objects of pledge
to guarantee consecutive creditor's rights during a set period
within the limit of the maximum of the debts.
Article 60 The borrowing contract may have a maximum mortgage contract
attached.
A contract which is signed to cover consecutive transactions over
certain commodities during a set period between the creditor and
the debtor may have a maximum mortgage contract attached.
Article 61 The creditor's rights in the principal contract of the
maximum mortgage cannot be transferred.
Article 62 The stipulations in this section, as well as stipulations in
other parts of this chapter, are applicable to maximum mortgage.
SECTION 1 MOVABLE PROPERTY HYPOTHECATION
Article 63 The hypothecation in this law refers to the acts of a debtor
or a third party to transfer movable property thereof to the creditor
as guarantee of the creditor's rights. When the debtor fails to pay
off the debts, the creditor has the right, according to the
procedures of this law, to convert the movable property into money,
or auction, or sell off the movable property to get paid off
preferentially with the proceeds.
The debtor or the third party described in the previous paragraph is the
pledger; the creditor is the pledgee and the transferred
movable property, hypothecated assets.
Article 64 The pledger and the pledgee shall enter into a written
hypothecation contract.
The hypothecation contract goes into effect as of the date of the
transfer of the movable property.
Article 65 The hypothecation contract shall include the following
information:
1. The varieties and sums of the principal creditor's rights;
2. The deadline for the debtor to pay off the debt;
3. The description, amount, quality and condition of the hypothecated
assets;
4. The range of hypothecation guarantee;
5. The time of the transfer of the hypothecated assets;
6. Other items deemed necessary by the signatories of the hypothecation
contract.
Hypothecation contracts that do not fully comply with the requirements
set in the previous paragraph may be revised.
Article 66 A pledger and the pledgee, in a hypothecation contract,
shall not arrange to transfer the ownership of the hypothecated
assets to the pledgee when the deadline of the debt expires and the
pledgee is not paid off.
Article 67 The range guaranteed by hypothecation includes the principal
creditor's rights and its interest, default fines, damage
awards, hypothecated assets storage expense and expense for the
realization of hypothecation rights. Should there be other
arrangements in the hypothecation contract, those arrangements
shall be followed instead.
Article 68 A pledgee has the right to collect the derivatives of the
hypothecated assets. Should there be other arrangements in
the hypothecation contract, those arrangements shall be followed
instead.
The derivatives referred to in the previous paragraph shall first be
used to compensate the expense for collecting the derivatives.
Article 69 A pledgee has the obligation to properly take care of the
hypothecated assets. The pledgee shall assume civil liabilities for
the damage or evanesce of the hypothecated assets resulted from
improper care.
If the pledgee fails to properly take care of the hypothecated assets,
which could lead to the damage or evanesce of the hypothecated
assets, the pledger can request the pledgee to withdraw and
deposit the hypothecated assets in advance, or request to pay
off the debts and have the hypothecated assets returned.
Article 70 If there is the possibility of damaging or reducing the value
of the hypothecated assets to a damage to the rights of the pledgee,
the pledgee can request the pledger to provide corresponding
guarantee. If the pledger refuses to provide guarantee, the pledgee
can auction or sell off the hypothecated assets and use the
proceeds, with the agreement of the pledger, to clear off the
guaranteed creditor's rights or have the proceeds deposited with a
third party agreed upon by the pledgee.
Article 71 When the deadline of the creditor's rights expires and the
debtor pays off the debts, or when the pledger pay off the
guaranteed creditor's rights ahead of the deadline, the pledgee shall
return the hypothecated assets.
Upon the expiration of the deadline of payment, the pledgee can be paid
off, with the agreement of the pledger by converting the
hypothecated assets into money or proceeds acquired by auction, or
sell off of the assets.
Should there be surplus of the value of the hypothecated assets after
their conversion into money or being auctioned or sell-off in exceed
of the creditor's rights, the balance shall belong to the pledger,
and the balance due shall be paid by the debtor.
Article 72 The third party who guarantee the hypothecation for the
debtor, when the pledgee realizes the hypothecation rights, can
request compensation from the debtor.
Article 73 The hypothecation rights disappears with the evanesce of the
hypothecated assets. The damage awards resulted from the evanesce
shall become hypothecated property.
Article 74 The hypothecation rights and the creditor's rights guaranteed
by the hypothecation rights exist at the same time, if the
creditor's rights disappear, so do the hypothecation rights.
SECTION 2 RIGHTS OF HYPOTHECATION
Article 75 The following rights can be used in hypothecation:
1. Money order, check, cashier's check, securities, deposit receipt,
warehouse receipt, bill of lading;
2. Shares and share certificates that are transferable according to
law;
3. Exclusive trademark rights, patent rights, property rights of the
copyrights;
4. Other rights that can be hypothecated according to law.
Article 76 When money orders, checks, cashier's checks, securities,
deposit receipts, warehouse receipts and bills of lading
are hypothecated, the documents of title shall be handed over to
the pledgee before the deadline as set in the hypothecation
contract. The hypothecation contract goes into effect as of the
date of the transfer of the documents of title.
Article 77 When money orders, checks, cashier's checks, securities,
deposit receipts, warehouse receipts and bills of lading that
have redemption or delivery dates are hypothecated, if the
redemption or delivery dates of the checks, cashier's checks,
securities, deposit receipts, warehouse receipts and bills of
lading are ahead of the deadline of the debts fulfilment dates,
the pledgee can redeem or pick up the goods ahead of the filament
dates of the debts, and, with the agreement of the pledger, use
the redeemed money or the goods picked up to clear off the guaranteed
creditor's rights in advance, or, have them withdrawn and
deposited with a third party agreed upon by the pledgee.
Article 78 If the share certificates that can be transferred according
to law are hypothecated, the pledger and the pledgee shall enter into
a written hypothecation contract and register with securities
registration departments. The hypothecation contract goes into
effect as of the date of the registration.
Shares hypothecated cannot be further transferred, except with the
agreement of both the pledger and the pledgee. The proceeds collected
by the pledger in the transfer of the hypothecated shares shall be
used to pay off the guaranteed creditor's rights in advance or
have them withdrawn and deposited with a third party agreed upon
by the pledger.
If the shares of limited liabilities companies are hypothecated, the
transaction will be governed by related provisions under the
Company Law on the transfer of shares. The hypothecation contract
goes into effect as of the date the hypothecated shares are
recorded in the stock ledger.
Article 79 If the exclusive trademark rights, patent rights or property
rights of the copyrights that are transferable according to law
are hypothecated, the pledger and the pledgee shall enter into a
written hypothecation contract and register with the related
administrative departments. The hypothecation contract goes into
effect as of the date of the registration.
Article 80 When the rights described in the Article 79 are hypothecated,
the pledger cannot further transfer or allow others to use the
rights hypothecated, except with the agreement between the pledger
and the pledgee. The transfer fee and license fee acquired by the
pledger shall be used to pay off the guaranteed creditors rights
in advance, or have them withdrawn and deposited with a third
party agreed upon by the pledgee.
Article 81 Rights hypothecation is also governed by the provisions in
Section of Chapter 1 of this law, besides the provisions in
this section.
Article 82 The lien described in the law refers to the acts of the
creditor, in line with the provisions in Article 84 of this law, to
own the debtor's movable property in accordance with the arrangements
of the contract and if the debtor fails to pay the debts before
the agreed deadline, the creditor has the right to take lieu of the
property and convert it into money, or auction or sell off the
property, and use the proceeds to be paid off preferentially
according to provisions of this law.
Article 83 The range of lien guarantee includes the principal debts and
their interest, default fines, damage awards, storage expense of
the lined property and the expense for the realization of the lien
rights.
Article 84 If the debtor fails to pay the debts incurred during the
execution of storage contracts, transport contracts and
processing contracts, the creditor has the right of lien.
Other contracts that can take lieu according to law are also governed
by the stipulations in the previous paragraph.
The parties can exclude items that cannot be taken lien in the
contract.
Article 85 If the properties are items that are dividable, the value of
the liened properties shall correspond to the sum of the debts.
Article 86 A party that is entitled to the lien rights has the
obligation to properly take care of the liened property. The party
that is entitled to the lien rights shall assume civil
responsibilities for the damage or evanesce of the liened
property resulted from improper care.
Article 87 The creditor and the debtor shall agree in the contract that
after the creditor takes lien of the property, the debtor shall
repay the debts in no less than two months. If there are no such
arrangements in the contract between the creditor and the debtor,
after the creditor takes lien of the property, the creditor shall set
a deadline of no less than two months for the debtor to pay off the
debt and notify the debtor of the deadline set.
If the deadline expires and the debtor fails to pay off the debt, the
creditor can, with the agreement of the debtor, be paid by
converting the lined property into money, or by proceeds acquired by
auctioning or selling off the property according to law.
Should there be a surplus value after converting the property into money
or auctioning or selling off of the property in exceed of the sum
of the debts, the balance shall belong to the debtor; the balance
due shall be paid off by the debtor.
Article 88 The lien rights shall perish under the following two
circumstances:
1. The creditor's right perishes;
2. The debtor provides other means of guarantee and the creditor
accepts.
Article 89 The parties can agree to the arrangements that one party
provide the other party deposits as the creditor's guarantee. After
the debtor repaid the debts, the deposits shall become the purchase
fund of be returned. If the party that provides the deposit fails
to pay off the contracted debts, the deposit shall not be returned;
if the party that receives the deposit fails to pay off the
contracted debts, the doubled sum of the deposits shall be returned.
Article 90 The deposit shall be arranged in a written contract. The
parties shall set a deadline for the delivery of the deposit in
the deposit contract. The contract goes into effect as of the date
of the actual delivery of the deposit.
Article 91 The sum of deposit shall be decided by the parties and shall
not exceed 20 percent of the sum of subject matter of the
principal contract.
Article 92 The fixed property described in this law refers to lands and
such fixed objects on the ground such as buildings and forest woods.
The movable property described in this law refers to property other than
fixed property.
Article 93 The guarantee contract, mortgage contract, hypothecation
contract, deposit contract referred in this law may be a
stand-alone written contract, including letters and facsimile
messages between the parties that have the nature of guarantee.
It may also be guarantee provisions in a principal contact.
Article 94 The conversion into money or sell-off of the objects of
pledge, the hypothecated property or liened property shall be
referenced with the market prices.
Article 95 Some laws such as the Maritime Law would have special
provisions on guarantee and those provisions shall be followed.
--
红了樱桃，绿了芭蕉，流光容易把人抛。
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