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8. Yado Steel Co Ltd (Yado Steel) entered into a loan agreement with Industry Bank to borrow RMB 20 million yuan for its expansion programme. Yado Steel provided its office building as property mortgaged for the debt, and made the registration as required. Mr Ding, one of the shareholders of Yado Steel, placed a guarantee letter of general liability in favour of Industry Bank.
Due to poor performance, Yado Steel failed to repay the debt when it came to maturity. Meanwhile, Industry Bank, under a restructuring plan, transferred the credit of RMB 20 million yuan together with the right of pledge to Oriental Assets Management Co (OAM). It also made a written notice to Yado Steel and Mr Ding, but failed to transfer the right of mortgage to OAM. On the contrary, Industry Bank concluded an agreement with Yado Steel before it went bankrupt, and settled other debts owed by the latter through the sale of the office building as mortgaged for the loan. Having found this fact, OAM, as a transferee of the credit, requested the court to order Mr Ding to bear its guarantor’s liability for the debt. Mr Ding asserted that he was a pledger with a general liability and would be responsible for the debt only if the things mortgaged could not satisfy the debt.
Required:
Answer the following questions in accordance with the relevant provisions of the Property Law and the Contract Law, and give your reasons for your answer:
(a) State whether the defence of Mr Ding should be supported by the court.
(b) State what was the cause of this dispute between OAM and Industry Bank.
答案:
8 This question requires candidates to deal with the legal issues of the transfer of contract and the secured interests under the Property Law and the Contract Law of China.
(a) In accordance with Article 176 of the Property Law, as regards a secured credit involving both guarantees of mortgage and pledge, where the obligor fails to pay its due debts, the obligee shall realise the obligee’s rights according to the relevant contract. In case the contract does not stipulate or merely stipulates an unclear provision, and where the obligor provides his/its own property as the security, the obligee’s rights shall be realised firstly by the security in property. In the present case, Mr Ding provided a pledge of general liability. According to the above provision of law, OAM, as a transferee of the loan agreement and the obligee of the secured credit, shall realise its right firstly by the security in property. Therefore, the defence of Mr Ding should be supported by the court.
(b) In accordance with Article 81 of the Contract Law, if the creditor transfers the rights, the transferee acquires rights affiliated to the creditor’s right, unless the affiliated rights are exclusive for the creditor himself. In the present case, when Industry Bank (as the original creditor) transferred its credit of RMB 20 million yuan to OAM, it did not transfer the right of mortgage to OAM simultaneously. It was obviously against the statutory requirement for the simultaneous transfer of the main credit and affiliated rights. Such a failure caused damage to OAM. Therefore, Industry Bank is the party liable for the debt.
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