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Dalian Branch of China Merchants Bank Co., Ltd. v. Dalian Yifang Real Estate Co., Ltd. (Guarantee Contract Dispute)
招商银行股份有限公司大连分行与大连一方地产有限公司保证合同纠纷案
【法宝引证码】

Dalian Branch of China Merchants Bank Co., Ltd. v. Dalian Yifang Real Estate Co., Ltd. (Guarantee Contract Dispute)
招商银行股份有限公司大连分行与大连一方地产有限公司保证合同纠纷案
Dalian Branch of China Merchants Bank Co., Ltd. v. Dalian Yifang Real Estate Co., Ltd. (Guarantee Contract Dispute) 招商银行股份有限公司大连分行与大连一方地产有限公司保证合同纠纷案
[Summary] [裁判摘要]
Periodical guarantee is common in pre-sale contracts of commercial houses, and advance mortgage registration of houses purchased by buyers can effectively reduce the risk of financial institutions and real estate enterprises. Due to its periodical characteristics, the transition from advance mortgage registration and registration of pre-sale of commercial houses is very important. It means indefinite extension of the period of guarantee provided by a real estate enterprise, contravenes the spirit of the Guarantee Law, and is contrary to the principle of good faith that a financial institution is slack in making advance mortgage registration. 阶段性担保在商品房预售合同中比较常见,通过办理买房人所购房屋预告抵押登记,可以有效减少金融机构和房地产企业的风险。因其阶段性特征,预告抵押登记和商品房预售登记的衔接非常重要。金融机构怠于办理预告抵押登记,等于无限延长房地产企业的保证期间,有违担保法的精神,亦有违诚实信用原则。
Supreme People's Court of the People's Republic of China 中华人民共和国最高人民法院
Civil Ruling 民事裁定书
No. 3474 [2017], Petition, Civil Division, SPC (2017)最高法民申3474号
BASIC FACTS 
Retrial applicant (plaintiff in first instance trial, and appellee in second instance trial): Dalian Branch of China Merchants Bank Co., Ltd. 再审申请人(一审原告、二审被上诉人):招商银行股份有限公司大连分行。
Person in charge: Qian Xi, president of the branch. 负责人:钱曦,该分行行长。
Attorney: Shang Qingguo, lawyer of Liaoning Xianhe Law Firm. 委托诉讼代理人:商庆国,辽宁先河律师事务所律师。
Attorney: Bi Shumin, lawyer of Liaoning Xianhe Law Firm. 委托诉讼代理人:毕书敏,辽宁先河律师事务所律师。
Respondent (defendant in first instance trial, and appellant in second instance trial): Dalian Yifang Real Estate Co., Ltd. 被申请人(一审被告、二审上诉人):大连一方地产有限公司。
Legal representative: Sun Xishuang, chairman of the board of directors of the company. 法定代表人:孙喜双,该公司董事长。
Attorney: Zhang Guohan, lawyer of Liaoning Think Tank Law Firm. 委托诉讼代理人:张国晗,辽宁智库律师事务所律师。
Attorney: Bai Yulong, lawyer of Liaoning Think Tank Law Firm. 委托诉讼代理人:白禹龙,辽宁智库律师事务所律师。
Retrial applicant Dalian Branch of China Merchants Bank Co., Ltd. (hereinafter referred to as the "Merchants Bank") was unsatisfied with the Civil Judgment No. 156 [2017], Final, Civil Division, Liaoning of the Higher People's Court of Liaoning province in the case involving the guarantee contract dispute with respondent Dalian Yiyang Real Estate Co., Ltd. (hereinafter referred to as the "Yifang Company") and applied to this Court for retrial. The Court formed a collegial panel as legally required to examine the case and has concluded the examination. 再审申请人招商银行股份有限公司大连分行(以下简称招商银行)因与被申请人大连一方地产有限公司(以下简称一方公司)保证合同纠纷一案,不服辽宁省高级人民法院(2017)辽民终156号民事判决,向本院申请再审。本院依法组成合议庭对本案进行了审查,现已审查终结。
Merchants Bank applied for retrial, alleging that: (1) In the second instance judgment, the findings that Merchants Bank failed to claim rights against Yifang Company within the guarantee period and that at expiration of said period, Yifang Company should be relieved of the guarantee obligation were unclear fact findings, and it was application of law in error that paragraph 2, Article 26 of the Guarantee Law of the People's Republic of China (hereinafter referred to as the "Guarantee Law") was applied to determine that Yifang Company should be relieved of its guarantee obligation. (2) In the second instance judgment, the findings that Merchants Bank should assume legal liability on its own for the seizure of the mortgage by the court caused by its being slack in making advance mortgage registration were erroneous fact findings. (3) In the second instance judgment, the findings that Merchants Bank was liable for the failure to make advance mortgage registration of the case-related house. (4) The second instance judgment was rendered by means of presumption , Merchants Bank was directly determined to be liable because the bank could not be excluded from the reasons for the failure to make advance mortgage registration of the case-related house. The doctrine of liability fixation was contrary to the stipulation of the guarantee contract and not in conformity with the provisions of laws. Claims: (1) Setting aside the Civil Judgment No. 156 [2017], Final, Civil Division, Liaoning of the Higher People's Court of Liaoning province. (2) Directly retrying the case, or appointing the Higher People's Court of Liaoning province to retry the case, and entering a judgment in favor of Merchants Bank. Merchants Bank applied for retrial in accordance with the provisions of Article 200我能说我还比较喜欢洗碗吗(2) and (6) of the Civil Procedure Law of the People's Republic of China. 招商银行申请再审称,1.二审判决认定招商银行未在保证期间内向一方公司主张权利,已过保证期间,一方公司保证责任应当免除,属于事实认定不清,适用《中华人民共和国担保法》(以下简称《担保法》)第二十六条第二款认定一方公司保证责任应当免除,属于适用法律错误。2.二审判决认定招商银行怠于履行办理预告抵押登记造成抵押物被法院查封,应自行承担法律责任,属于认定事实错误。3.二审判决认定案涉房屋没有办理预告抵押登记的责任在于招商银行,属于认定事实错误。4.二审判决采用推定方式,认定案涉房屋没有办理预告抵押登记,不能排除非银行原因,因而就直接认定责任在于招商银行,该归责原则与担保合同约定相悖,也不符合法律规定。请求:1.撤销辽宁省高级人民法院(2017)辽民终156号民事判决。2.提审本案,或者指令辽宁省高级人民法院再审本案,改判支持招商银行的诉讼请求。招商银行依据《中华人民共和国民事诉讼法果然是京城土著》第二百条第二项、第六项的规定申请再审。
Yifang Company submitted an opinion, stating: (1) The case-related guarantee was a "periodical guarantee." According to the contract between the parties and the law, the guarantee period should be from the date of the delivery of the documents on the registration and filing of home purchase contracts by Yifang Company to the date of advance mortgage registration by Merchants Bank within a reasonable period of time. (2) Under the contract, Yifang Company was obligated only to deliver the documents on the registration and filing of house-purchase contract to Merchants Bank. As Yifang Company had performed the said obligation, Merchants Bank, obligated to make advance mortgage registration, should be liable for failure to do so. (3) When Yifang Company handed over the contract for recordation concerning the case-related house to Merchants Bank, property registration and mortgage registration could be made for the case-related house, and it was unnecessary to make advance mortgage registration. (4) The evidence of Merchants Bank sufficiently proved that Merchants Bank transacted the case-related loan business as “commercial building purchase loan,” instead of “personal housing loan.” According to the Guarantee Agreement, the case-related loan did not fall within the scope of the secured debt with respect to the “personal housing loan” as stipulated in the Guarantee Agreement, and Yifang Company should not be obligated to give a guarantee for the case-related loan. In summary, the application for retrial filed by Merchants Bank lacked factual and legal basis, and it was requested to dismiss it. 一方公司提交意见称,1.案涉保证为“阶段性保证担保”,根据双方合同约定及法律规定,保证期间应当至一方公司交付购房合同登记备案手续后,招商银行在合理期限内办理完毕预告抵押登记之日止。2.根据合同约定,一方公司的义务仅仅是将购房合同登记备案手续交付招商银行。在一方公司已履行义务的情况下,招商银行作为预告抵押登记的办理义务主体,应当承担未能办理预告抵押登记的责任。3.一方公司将案涉房屋备案合同转交招商银行时,案涉房屋已可以办理产权登记以及抵押权登记,无需办理预告抵押登记。4.招商银行的证据已充分证明招商银行办理案涉贷款业务时,是按照“购买商业用房贷款”办理,并非是“个人住房贷款”。根据《担保协议》的约定,案涉贷款不属于《担保协议》约定的“个人住房贷款”的担保债务范围,一方公司根本就不应对案涉贷款承担保证责任。综上,招商银行的再审申请缺乏事实与法律依据,请求予以驳回。
DISPUTED ISSUES 
This Court held that the issue of this case was whether Yifang Company should be obligated to give a guarantee. 本院认为,本案争议的焦点问题是:一方公司应否承担保证责任。
The Personal House Purchase Loan and Guarantee Contract entered into between Merchants Bank and Gao A and the Guarantee Agreement entered into between Merchants Bank and Yifang Company, which were both the declarations of true will of the parties and complied with the mandatory provisions of laws and administrative regulations, should be determined to be lawful and valid. 招商银行与高某签订的《个人购房借款及担保合同》,招商银行与一方公司签订的《担保协议》,均系双方当事人真实意思表示,且不违反法律、行政法规的强制性规定,应认定合法有效。
The determination of the guarantee period in this case. In accordance with the stipulation between Merchants Bank and Yifang Company in Clause 5 of the Guarantee Agreement, Yifang Company gave periodical guarantee, and the guarantee period was from the date of granting a loan to the date of advance mortgage registration. The parties entered into the Guarantee Agreement in order that Yifang Company would, within 90 working days, properly obtain the documents for the advance mortgage registration of the house bought by Gao A and hand them over to Merchants Bank and that after Merchants Bank made advance mortgage registration, Yifang Company would be relieved of its guarantee obligation, and Merchants Bank would secure its creditor's rights by mortgage rights. Literally, the parties agreed on the guarantee period, the length of which depended on the time of properly obtaining the documents for the advance mortgage registration. The agreement was the declaration of true will of the parties, but it could neither contravene the Guarantee Law nor extend the guarantee period indefinitely, which was the supposed intent of a periodical guarantee. Therefore, the guarantee period in this case should be determined to be from October 9, 2012, the date on which Merchants Bank granted the loan to the date within a reasonable period when Merchants Bank made advance mortgage registration after January 17, 2014, the date on which Yifang Company delivered the documents for the advance mortgage registration of the commercial house to Merchants Bank. Clause 7 of the Guarantee Agreement stipulated that, if the documents for advance mortgage registration of the house purchased by the borrower were not properly obtained within 90 working days not for reasons of Merchants Bank, China Merchants Bank had the right to require Yifang Company to perform its guarantee obligation from the date of granting the loan to the date of advance mortgage registration. In the same way, when Yifang Company handed over the registration and filing documents with respect to the house purchase contract to Merchants Bank, Merchants Bank should make advance mortgage registration within a reasonable period, and for the said period, the 90 working days agreed by the aforesaid parties should serve as a reference point. 关于本案保证期间的确定。招商银行与一方公司在《担保协议》第五条约定,一方公司承担的是阶段性担保,保证期间是每笔贷款放款之日起至预告抵押登记完成之日止。双方签订《担保协议》的目的是一方公司在90个工作日内办妥高某所购房屋预告抵押登记手续交给招商银行,招商银行办理完预告抵押登记后,一方公司的担保责任即可免除,招商银行通过抵押权来保障债权实现。从字面理解,双方当事人对保证期间进行了约定,以办妥预告抵押登记为时间节点,保证期间可以延长,也可以缩短。该约定是双方当事人的真实意思表示,但不能与《担保法》的规定相悖,不能无限延长保证期间,也是阶段性担保的应有之义。因此,本案的保证期间应确定为从2012年10月9日招商银行放款之日起,至2014年1月17日一方公司向招商银行交付商品房预告抵押登记手续后,招商银行在合理期限内办理完预告抵押登记止。《担保协议》第七条约定,如出现非因招商银行原因未能在90个工作日内办妥借款人所购房屋预告抵押登记手续,招商银行自贷款发放之日起,至预告抵押登记完之日止之前,其有权要求一方公司履行担保责任。同理,一方公司将购房合同的登记备案手续交给招商银行后,招商银行亦应在合理期限内办理预告抵押登记,而合理期限应以上述双方约定的90个工作日作为参照。
Liability for failure to make advance mortgage registration of the case-related house. Under Clause 6 of the Guarantee Agreement, when providing a guarantee as guarantee, Yifang Company should obtain authentic and valid registration and filing documents for the house purchase contract, promptly hand over the said documents to the agency designated by Merchants Bank, and actively cooperate with Merchants Bank in making advance mortgage registration. In the trial at the court of first instance, Merchants Bank argued that the reason for not making advance mortgage registration was that Gao A did not cooperate: Gao A was a Hong Kong resident, it was difficult to contact him, and as he did not provide a power of attorney, the bank could not make the advance mortgage registration alone. Clause 26.2 of the Personal House Purchase Loan and Guarantee Contract entered into between Merchants Bank and Gao A stipulated that: “If the mortgaged property has not yet completed the title certificate at the time of signing this contract, the mortgagor shall actively cooperate with the lender and/or the seller to handle the advance mortgage registration or the pre-sale mortgage registration in accordance with the requirements of the lender; within 60 days after the mortgaged property meets the conditions for the formal mortgage registration, the mortgagor must unconditionally cooperate with the lender to complete the formalities for the advance mortgage registration or the pre-sale mortgage registration to be officially registered.” In the first instance and second instance trials, Merchants Bank failed to provide evidence that the failure to make advance mortgage registration was caused by Yifang Company delaying the delivery of the documents for advance mortgage registration, or that it had actively urged Yifang Company and Gao A to cooperate with it in making advance mortgage registration. After receiving the documents for the advance mortgage registration of the purchased house from Yifang Company on January 17, 2014, Merchants Bank did not make advance mortgage registration in a reasonable period. The case-related house was seized by a court in another case on March 6, 2015, rendering advance mortgage registration impossible. On April 22, 2015, it brought an action in the court against Yifang Company to claim its rights. Merchants Bank was conspicuously slack in performing its contractual obligations and was substantially at fault in respect of the appearance of the consequences of impossibility of advance mortgage registration of the case-related house. 关于未办理案涉房屋预告抵押登记的责任。《担保协议》第六条约定,一方公司在承担保证担保期间,应当办理购房合同的真实有效登记备案手续,并及时将购房合同的登记备案手续转交给招商银行指定代办机构,积极配合招商银行办理预告抵押登记。招商银行一审中辩称未办理预告抵押登记的原因是高某不配合,因高某是香港户籍,与他联系困难,其未出具代办手续,银行无法单方办理。招商银行与高某签订的《个人购房借款及担保合同》第26.2条约定:“如本合同签订之时抵押房产尚未办妥产权证书的,抵押人应按照贷款人的要求,积极配合贷款人及/或售房人办理预告抵押登记或者楼花抵押登记;抵押房产具备办理正式抵押登记条件起的60日内,抵押人必须无条件配合贷款人办妥由预告抵押登记或楼花抵押登记转为正式抵押登记的手续。”在一审、二审中招商银行未提供证据证明未办理预告抵押登记是一方公司迟延交付办理预告抵押登记手续所致,亦未提供证据证明其已积极敦促一方公司及高某配合其办理预告抵押登记。招商银行于2014年1月17日收到一方公司交付的购房预告抵押登记手续后,没有在合理期间内及时办理预告抵押登记,直至2015年3月6日案涉房屋因另案被法院查封无法办理后,才于2015年4月22日向法院起诉一方公司主张权利。招商银行怠于履行合同义务是显而易见的,对案涉房屋不能办理预告抵押登记后果的产生存在重大过错。
Whether Yifang Company should be obligated to give a guarantee.:In this case, China Merchants Bank was obligated to make advance mortgage registration. When Yifang Company failed to deliver the documents for advance mortgage registration within 90 working days, Merchants Bank should, after having received the said documents, which Yifang Company had delayed in delivering, make advance mortgage registration in a timely manner within a reasonable period of time, so as to prevent the seizure of case-related house by the court and the impossibility of advance mortgage registration. However, after receiving the said documents, which Yifang Company had delayed in delivering, Merchants Bank neither raised an objection nor made advance mortgage registration for more than one year, with good cause, in which case the condition for relieving Yifang Company of the guarantee obligation with respect to the periodical guarantee should be deemed to have happened. Under paragraph 2, Article 26 of the Guarantee Law: "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," Merchants Bank failed to claim rights against Yifang Company during the guarantee period, and thus Yifang Company was relieved of the guarantee obligation. In addition, paragraph 1, Article 119老婆觉得我剪头发浪费钱 of the Contract Law of the People's Republic of China provided that: “Where a party breached the contract, the other party shall take the appropriate measures to prevent the losses from increasing; where the other party's failure to take appropriate measures results in additional losses, it cannot demand compensation for the additional losses." For that reason, Merchants Bank should be liable on its own for court seizure of the mortgage caused by its being slack in performing the obligation of advance mortgage registration. 关于一方公司应否承担保证责任。本案中,招商银行是办理预告抵押登记的义务主体,在一方公司未在约定的90个工作日内交付办理预告抵押登记手续情况下,招商银行收到一方公司迟延交付的预告抵押登记手续后,应当在合理期限内及时办理预告抵押登记,防止案涉房屋被法院查封而无法办理。但是招商银行收到一方公司迟延交付预告抵押登记手续后,不但没有提出异议,而且一年多时间不去办理预告抵押登记,且无合理解释,应视为一方公司阶段性担保的保证责任免除条件成就。根据《担保法》二十六条第二款“有合同约定的保证期间和前款规定的保证期间,债权人未要求保证人承担保证责任的,保证人免除保证责任”的规定,招商银行未在保证期间内向一方公司主张权利,一方公司的保证责任免除。另外,《中华人民共和国合同法夫妻本是同林鸟》第一百一十九条第一款规定:“当事人一方违约后,对方应当采取适当措施防止损失的扩大;没有采取适当措施致使损失扩大的,不得就扩大的损失要求赔偿。”因此,招商银行因怠于履行办理预告抵押登记义务所造成抵押物被法院查封的责任,应当由其自行承担。
In view of the fact that Yifang Company was relieved of its guarantee obligation, it is unnecessary to find whether the loan owed by Gao A was within the scope of guarantee in the case, and the present court will not examine the question. 鉴于一方公司的保证责任已免除,至于高某的借款是否属于本案担保范围,已无审理必要,本院对此亦不予审查。
JUDGMENT'S REASONING 
In summary, the application for retrial of Merchants Bank is contrary to the circumstance as provided in paragraph 2(6), Article 200 of the Civil Procedure Law of the People's Republic of China. Under paragraph 1, Article 204 of the Civil Procedure Law of the People's Republic of China and paragraph 2, Article 395 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, a ruling is entered as follows: 综上,招商银行的再审申请不符合《中华人民共和国民事诉讼法》第二百条第二项、第六项规定的情形。依照《中华人民共和国民事诉讼法》第二百零四条第一款,《最高人民法院关于适用<中华人民共和国民事诉讼法>的解释》第三百九十五条第二款之规定,裁定如下:
The application for retrial of the Dalian Branch of China Merchants Bank Co., Ltd. shall be dismissed. 驳回招商银行股份有限公司大连分行的再审申请。
Presiding judge Wu Jianhua 审判长  武建华
Judge Dong Hua 审判员  董 华
Judge Zhang Nengbao 审判员  张能宝
September 26, 2017 二〇一七年九月二十六日
Assistant judge Ma Hening 法官助理马赫宁
Clerk Sui Xin 书记员隋欣
     
     
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