Basic facts of the case

In November 2011, the defendant's bank signed a "Maximum Guarantee Contract" with a guarantor, which stipulated that within the maximum balance of 15 million yuan within one year from November 2011, a guarantor would provide guarantee for Zhejiang Jingang Shipbuilding Co., Ltd. (hereinafter referred to as Jingang Company) by signing loan and acceptance agreements with the defendant's bank. Houjingang Company and the defendant signed three Banker's acceptance Acceptance Contracts from January to March 2012. After signing the contract, Jingang Company remitted 50% of the face value of the bill as the performance bond to the security account designated by the defendant, and the defendant also issued the corresponding acceptance bill to Jingang Company. In April 2012, the defendant and Jingang Company signed a supplementary "Mortgage Contract", which stipulated that Jingang Company would mortgage all of its ongoing ship projects to the defendant in sections as additional mortgage security, and also completed the registration procedures for chattel mortgage. After the acceptance of the bill of exchange expires, the defendant shall deduct the principal and interest of the deposit from the Golden Harbor Company before paying the bill of exchange. At the end of June 2012, the court accepted the bankruptcy application of Jingang Company and later appointed Zhejiang Liqun Law Firm as the administrator (plaintiff) of Jingang Company. In the process of fulfilling its duties, if the administrator discovers that the mortgage contract involved in this case violates Article 31 of the Bankruptcy Law, the administrator has the right to apply to the people's court for revocation. In October 2013, the administrator filed a lawsuit with the court requesting the revocation of the Mortgage Contract.

First instance determination and judgment

The plaintiff believes that: 1. The creditor's rights and debts between Goldport Company and the defendant arise from the Banker's acceptance Acceptance Contract signed by both parties. According to the Banker's acceptance Acceptance Contract, "the applicant unconditionally deposits the bills payable in full to the acceptor two days before the maturity date of the bill. From the day before the maturity date of the bill, the applicant agrees that the acceptor directly transfers the bill amount from the applicant's deposit account." It can be seen that after the defendant issues the acceptance bill, Golden Harbor has the contractual obligation to unconditionally deposit the bills payable in full to the defendant two days before the maturity date of the bill, If Jin Gang Company fails to fulfill the above obligations, the defendant shall pay the ticket payment to the holder in accordance with the provisions of the contract, and convert the advanced ticket payment into overdue loans. This indicates that the creditor's rights and debts between Jingang Company and the defendant have already arisen at the time of signing the contract. 2、 The mortgage contract involved in this case belongs to the act of providing property guarantee for debts without property guarantee within one year before the bankruptcy application, and the administrator has the right to request the people's court to revoke it.

The defendant believes that: 1. Although the acceptance bill issued by Jingang Company to the defendant has provided a natural person guarantee, the defendant found that Jingang Company had a defect in the guarantee ability of the guarantor before the debt was formed. Therefore, it is not improper to request Jingang Company to provide mortgage guarantee. 2、 When handling the mortgage, Jingang Company did not engage in intentional or negligent behavior. When the guarantor had defects in their guarantee ability, the defendant's request for Jingang Company to provide property guarantee was a substitute guarantee method at that time. 3、 When handling the property mortgage procedures, the creditor's rights and debts of both parties have not yet formed.

First instance judgment and reasons

The court of first instance believed that the key point of this case was whether there was a credit debt relationship between Jingang Company and the defendant before the Hypothec was set, or there was a credit debt relationship after the Hypothec was set, that is, whether the node where Jingang Company and the defendant had a credit debt relationship was the date when Jingang Company issued the bill, or the date when both parties entered into a Banker's acceptance acceptance contract, or the date when the defendant advanced the payment for the acceptance bill. According to the relevant provisions of the Negotiable Instruments Law, on the date of issuance, there is an entrusted payment relationship between Jingang Company and the defendant. According to the acceptance contract, the defendant only has the right to dispose of the collateral of Jingang Company from the date of advance payment and demand Jingang Company to repay the advance payment and pay interest. Therefore, Jingang Company and the defendant do not have a debt relationship before setting the mortgage, As a result, the first instance court rejected the plaintiff's lawsuit request.

Appellant's Appeal Request and Defense

The plaintiff objected to the judgment of first instance and appealed that: First, on the date of issue of the bill, Jingang Company and the defendant signed the Banker's acceptance Acceptance Contract, and the two parties established a legal relationship on the bill, which is regulated by the Bill Law, rather than just the entrusted payment relationship regulated by the Contract Law. In addition, according to the provisions of the Contract Law, the principal or trustee may terminate the commission contract at any time, and the legal relationship between the bill established by Jin Gang Company and the defendant in this case cannot be terminated at any time. 2、 The Negotiable Instruments Law has clear legal provisions on the creditor's rights and debts after the issuer and payer sign an acceptance contract and establish a legal relationship with the bill. 3、 The Banker's acceptance Acceptance Contract clearly stipulates the creditor's rights and debts of both parties, and complies with the relevant provisions of the Bill Law. 4、 The defendant has the right to make a claim against Jin Gang Company and others from the date of advance payment of the ticket, which is not the time when the creditor's rights and debts arise, but the beginning of the defendant's claim for breach of contract liability. Therefore, the plaintiff requests the second instance court to revoke the original judgment and change the judgment to revoke the Mortgage Contract.

The defendant replied that: First, the evidence of the original trial fully explained the creditor's rights and debt relationship after the establishment of Hypothec. 2、 According to the Negotiable Instruments Law, the defendant is only a person who accepts the payment of the bill amount by the Golden Harbor Company, and is not a creditor existing from the date of the bill of exchange. 3、 According to the acceptance contract, the defendant only has the right to demand payment of the principal and interest of the advance payment from Jingang Company from the date when the bill of exchange is due for payment and Jingang Company fails to fulfill the payment obligation, and from the date when the defendant advances the bill of exchange. Therefore, the defendant requests the second instance court to dismiss the plaintiff's appeal request.

Determination and handling of the second instance: the court of second instance held that the dispute between the two parties was whether the creditor's rights and debts between Jingang Company and the defendant arose from the time when both parties signed the Banker's acceptance Acceptance Contract or the defendant issued the Banker's acceptance, or from the date when the defendant advanced the Banker's acceptance. Jingang Company signed the Banker's acceptance Acceptance Contract with the defendant and issued a Banker's acceptance to Jingang Company. After Jingang Company obtained and held the Banker's acceptance, it enjoyed the right to the bill, and could transfer the right to the Banker's acceptance to others or authorize the right to the Banker's acceptance to be exercised by others. Therefore, the creditor's rights and debt relationship between Jingang Company and the defendant arose from the time the defendant issued the acceptance bill. Therefore, the first instance judgment is revoked and the "Mortgage Contract" is revoked.

Analysis of this case

According to Article 31 (3) of the Bankruptcy Law, the administrator has the right to request the people's court to revoke any act of providing property guarantee for debts without property guarantee within one year prior to the bankruptcy application. Therefore, the focus of the dispute in this case is: whether the creditor's rights and debts between Jingang Company and the defendant arise from the date when both parties sign the Banker's acceptance Acceptance Contract or the defendant issues the Banker's acceptance, or from the date when the defendant advances the Banker's acceptance. The author believes that the creditor's rights and debts between Jingang Company and the defendant came into being when both parties signed the Banker's acceptance Acceptance Contract. The reasons are as follows:

1、 According to Article 26 of the Negotiable Instruments Law, "After the drawer issues the bill of exchange, they assume the responsibility of guaranteeing the acceptance and payment of the bill of exchange..." Therefore, after signing the acceptance contract, the main debt of Jingang Company is to "guarantee the acceptance and payment of the bill of exchange"; According to Article 44 of the Negotiable Instruments Law, "After accepting the bill of exchange, the payer shall bear the responsibility for payment at maturity." Therefore, after signing the acceptance contract, the defendant's debt mainly manifests as "payment at maturity. It can be seen that when both parties signed the acceptance contract, the main rights and obligations of both parties have been clearly defined. Jingang Company enjoys the rights of the bill after it obtains and holds the Banker's acceptance, and can transfer the rights of the Banker's acceptance to others or delegate the rights of the Banker's acceptance to others. II. The Banker's acceptance acceptance contract clearly stipulates the creditor's rights and debts of both parties, and complies with the relevant provisions of the Bill Law. Therefore, the second instance court in this case revised the judgment of the first instance to be correct.

Zhejiang Liqun Law Firm Jin Wei