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	APPLICATION OF JUDICIAL INTERPRETATIONS TO GUARANTEE DISPUTE CASES AND THE DETERMINATION OF GUARANTEE LIABILITY FORMS

	(Announcement of the Supreme People's Republic of China (No.38 [2002] Fa-Shi), November 23, 2002: The Official Reply of the Supreme People's Court on the Application of Judicial Interpretations to Guarantee Dispute Cases and the Determination of Guarantee Liability Forms were adopted at the 1256th Meeting of the Judicial Committee of the Supreme People's Court on November 11, 2002. It is hereby promulgated and shall come into force as of December 6, 2002)


SUBJECT : GUARANTEE DISPUTE
ISSUING DEPARTMENT : THE SUPREME PEOPLE'S COURT OF THE PEOPLE'S REPUBLIC OF CHINA
ISSUE DATE : 11/23/2002
IMPLEMENT DATE : 12/06/2002
LENGTH : 301 words
TEXT :

Regarding Request for Instructions on Relevant Issues Concerning the Application of the Guarantee Law (No.2 [2002] Lu-Fa-Mi-Er-Zi), we, after deliberation, reply as follows:

I. The Provisions of Several Issues Concerning Guarantee In the Hearing of Economic Contract Dispute Cases (No.8 [1994]) promulgated by the Supreme People's Court shall apply to guarantee dispute cases occurring after implementation of those Provisions, and to guarantee dispute cases of first and second instances that haven't been concluded before implementation of those Provisions. Those provisions shall not be applied in the rehearing of guarantee dispute cases of which the judgments and rulings took effect before implementation of the said provisions. Guarantees and guarantee disputes occurring after the Guarantee Law of the People's Republic of China came into force shall be governed by the Guarantee Law and the relevant judicial interpretations thereof.

II. If the form of guarantee liability is not stipulated in a contract concluded before the guarantee law came into force or the stipulation is not clear, the guarantee shall be determined as a general guarantee. If the guarantee contract expressly stipulates that the guarantor starts to bear the guarantee liability when the debtor is incapable of performing the obligation, the guarantee shall be regarded as a general guarantee. If the guarantee contract expressly stipulates that the guarantor bears the guarantee liability when the warrantee doesn't perform the obligation, and liabilities of general guarantee can't be presumed according to the real intention of the parties in concluding the contract, the guarantee shall be regarded as a guarantee of joint and several liabilities.

With respect to the guarantee dispute cases of which the judgments and rulings took effect before implementation of this Reply, this Reply shall not be applied in the rehearing at application of the party or decided according to the procedure for trial supervision.