A Way to Avoid the Need to Repay Debts That Have Taken Over
Many will be troubled as they become debt guarantees for family and friends. http://momentodada.com for further clarification
Even though I became a guarantor by believing in the words, “Because I will not bother you absolutely” , I think that it will be full of feelings from now on when the bill arrives.
The joint guarantor has the same obligation to repay the debtor and is charged to the joint guarantor if the primary debtor runs away or does not repay.
Unfortunately, the guarantor is in a position that can not refuse the claim for debt.
Well, that’s not to say if you have to pay for a debt, you have to keep paying until you pay off.
There is a system in which the joint guarantor is not required to repay the debt if the debt meets the conditions for becoming statute of limitations.
That is the use of prescription .
The joint guarantor can claim the use of the statute, even if the joint guarantor meets the conditions or the primary obligor meets the conditions.
If you become a joint guarantor and you are having trouble repaying your debt, let’s check if the conditions for your debt fall into prejudice.
Consultation of debt-based prescription aid to Avance Legal Office
table of contents
- Reconfirm the position of the guarantor! Being a guarantor is the same as carrying a debt
- If you become a joint guarantor, there is a repayment obligation and you can not refuse to repay the debt
- Common question about repayment obligation of joint surety
- Debt owed by a joint guarantor is no longer obligated to repay by means of prepayment
- Aging completion conditions in case the joint guarantor uses debt aging
- The joint guarantor can use the statute of limitations even if the principal obligor satisfies the conditions
- It is important to prove that the debt of the main debtor was not approved
- A condition that the joint guarantor can not use the limitation “period for suspension of limitation”
- The effect of the suspension of debt settlement is more severe for joint guarantors
- If the principal obligor approves the debt after the expiration of the prescription, the joint guarantor can invoke the prescription
- There may be cases where a joint guarantor is required to make a judicial bill, not the main debtor
- Even if a ruling is made against a joint guarantor, debt can not be paid if the debtor’s prescription is used
- The effect of the suspension of debt settlement is more severe for joint guarantors
- If the joint guarantor applies the prepayment of the main debt to an expert (lawyer, judicial scrivener)
- [Summary] The debt that took over will be released from the joint guarantor by using the prescription
Reconfirm the position of the guarantor! Being a guarantor is the same as carrying a debt
Joint guarantee contracts are the contract method adopted by “rental contract”, “scholarship loan”, “bank loan”, “dark gold”, etc.
As the lender (creditor), if the debtor can not pay, the joint guarantor can make a claim, so a guarantee contract that raises the probability of repayment is an effective means.
People who become a guarantor are often relatives (parents, children, brothers, uncles, etc.) and friends.
There are some who have become counselors after being consulted and then become guarantors, but there are also those who have become guarantors without thinking as follows.
- I have not received a detailed explanation of the joint guarantee contract
- I signed and sealed without thinking deeply because I thought I would return
- I wanted to avoid the deterioration of the relationship and for now I agreed
- “Lend me only my name” was said
- I had become a guarantor before I knew it
If you become a joint guarantor, you will have to repay when the debtor can not repay it.
If you become a joint guarantor, there is a repayment obligation and you can not refuse to repay the debt
Let’s look specifically at what kind of contract it will be when you become a guarantor.
“Creditor and Debtor” and “Creditor and Joint Guarantor” have different contracts.
- Debtor’s debt = main debt contract
- Debt guaranteed by the joint and surety = guaranteed debt agreement
To be a joint and several guarantor can be considered as having made a debt contract that requires repayment, rather than contracting for the debt of the main debtor.
Furthermore, the joint guarantor can not refuse repayment to the creditor.
|There is no right to defend the claim||A creditor can make a claim to a favorite person whether he / she is a debtor or a joint guarantor.
If the principal obligor fails to repay, the joint guarantor has no right to demand “Pay the principal obligor before me” even if the creditor requests it.
|There is no defense of search||Even though the principal debtor has the ability to repay, even if the joint guarantor is charged earlier , there is no right to demand that “the principal debtor has the money to repay, so claim for it”.|
|There is no benefit of sorting||Even if you guarantee the main debt 10 million yen with a joint guarantor of four people, it is not a guarantee of 2.5 million yen per person, but there is an obligation to repay each 10 million yen repayment completion.
Even if you return 2.5 million yen per person, you will be charged as long as debt remains.
As you can see from these facts, if it is determined that the main debtor can not repay or the creditor can not collect it, the joint guarantor can not even have the right to refuse even if the request is made.
Common question about repayment obligation of joint surety
If the principal debtor dies, will the joint guarantor have a repayment obligation? If the principal debtor dies, the joint guarantor must repay the debt in full. What happens if I receive an invoice but can not contact the principal debtor himself? Even if the principal debtor can not reach without repayment, the joint guarantor is obliged to respond to the request from the creditor. What happens if you leave your debt without paying back? Debt will not be lost until the joint guarantor or the debtor pays off. Is there a way to get rid of the debt that the guarantor bears? There is! If you clear the conditions, you can give up the obligation to repay the debt by “prejudice-in-aid”.
Debt owed by a joint guarantor is no longer obligated to repay by means of prepayment
When a guarantor receives a request from a creditor, the process and the contents of the transaction are up to that point.
“In the past, I have been a guarantor of acquaintance’s debt, and suddenly a proviso is received for many years. I have not been in contact with acquaintance for a long time.”
“I became a guarantor for children’s scholarships, but from the beginning of my return, I have not been a child but my parents have always returned.”
In this way, if the debtor himself has been in debt for a long time, it may be in the process of settling the debt.
If you use the extinct prescription which declares to the creditor (lender) that “I have no intention to repay this debt because the prescription is completed”, even a joint guarantor will not have to pay back There is a possibility.
However, the conditions must be met in order to invoke the prescription.
Aging completion conditions in case the joint guarantor uses debt aging
The use of prescriptions is described in Article 145 of the Civil Code.
With the Civil Code Article 145 (Invocation of Prescription)
Even if objective facts indicate that the completion of the prescription is complete, the court can not make a trial based on the prescription on its own. It is necessary for the parties to express their intention to benefit from the prescription.
※ Notes and references) ※ Some of the borrowers think that “I would like to return the money I borrowed even if the term is fixed,” and the obligation to repay the debt disappears unless the borrower applies the extinct term from him. There is no way of thinking.
In order to complete the use of this extinct aging, there are four conditions that can not be recognized as satisfying all, so let’s confirm.
- Debt period specified in the Civil Code has passed
- I have never “approved for debt” (I have not made some repayments or requests for payment suspension)
- No claims have been made by the creditors (the court has not received a ruling)
- Indicate to the creditor (lender) the intention to use the prescription
Please check the following article for more detailed conditions, such as the term of debt settlement.
Debt Aging Method! Comment on the conditions for establishing the statute, the notification method, and the cost of supporting the extinct statute of limitations
Even if a debt is a guarantor, you can use the prescription if the guarantor satisfies the above conditions.
However, if the debtor is approving the debt or if the legal request has been made, the statute will be suspended, so care should be taken.
If the debt is clearly overdue, it may be better to consider it with the aid of aging.
The joint guarantor can use the statute of limitations even if the principal obligor satisfies the conditions
Aging can be used if the joint guarantor meets the conditions that can be used for aging.
Not only that, even if the conditions for completion of the primary debtor’s prescription are met, the joint guarantor can use the primary debtor’s prescription.
If the debtor of the main debtor is lost, the obligation for repayment by the joint guarantor will also disappear.
This is because the joint guarantor has the right to invoke the limitation.
With the right of limitation
Judging whether it is a party (the right holder) according to the general standard “right to directly benefit from the prescription.” Those who have the right are limited to obligors, joint debtors, guarantors and joint guarantors and are recognized as those who are exempt from debt repayment obligations. The joint guarantor who can directly obtain the benefit (abandon repayment obligation) by using the prepayment of the debt of the main debtor is the person who is the prepayment of the main debt.
Even if the joint guarantor continues to repay debts, it is considered as not “approval of debt” if the debtor himself has not paid back.
However, if the joint guarantor uses the prepayment of the main debtor, he or she must prove to the creditor that the main debtor did not have “debt approval” or “judicial claim / judgment”.
Let’s hold down the points that should be taken care of as a solidarity guarantor.
It is important to prove that the debt of the main debtor was not approved
When repaying your debt, there will be few people who are directly visiting the creditor and making repayments.
Depending on the type of debt, from the perspective of the creditors, such as repayments on ATMs and transfer forms, it is not important who is repaying, so even if the joint guarantor repays, it does not know.
Even if the joint guarantor repays instead, it can not be proved that the main debtor’s “debt approval” has not been shown unless he / she shows the fact.
- Solidarity guarantor who is missing the main debtor and repaying on normal request
- Solidarity guarantor who has been judged in trial and continues to repay
- Solidarity guarantor who has been replacing children’s scholarship for many years
For those who fall under these conditions, it is recommended to leave a “transfer statement” or the like that proves that the joint guarantor repays , so as not to impede the use of the primary debtor’s prescription.
A condition that the joint guarantor can not use the limitation “period for suspension of limitation”
The conditions under which the joint guarantor can use the prescription include “the case has not been filed by the creditor in court” and “the case has not been approved for debt”.
In other words, if you are legally requested or have a debt approval, you will not be able to use the statute of limitations.
These two actions is called the aging interruption reason, when the aging interruption events observed progression of aging is reset, we further aging period will be extended.
If the approval of the debt is obtained as in the above example, then the aging period is reset and extended for 5 years.
|Court claims||Creditors conduct lawsuits and payment reminders through the courts.
In that case, the prescription will be extended for 5 years.
In addition, if the court’s decision is ruled out in this way, the debt statute will be extended to 10 years from the date of the decision and forced enforcement (such as property seizure) will take place.
In fact, the effects and results of the two are different depending on whether the main debtor has a cessation of statute of limitations or the joint guarantor.
The effect of the suspension of debt settlement is more severe for joint guarantors
In fact, the effects brought about each other are different depending on whether the main debtor has suspended the statute of limitations or the joint guarantor.
First look at the table below.
|Main debt||Guaranteed debt|
|Debt approval||Approved by the principal debtor||Aging is suspended||Aging is suspended|
|Guarantor approves||Aging does not stop
※ (Major 12.11.2)
|Aging is suspended|
|Court claims||Request to the main debtor||Aging is suspended||Prescription is suspended ※ Civil Law Article 457|
|Request to guarantor||Prescription is suspended ※ Civil Article 458 · 434 Article||Aging is suspended|
※ Civil law Article 457 ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・ ・The request for one person) is also effective against other joint and several obligors * Large format 12.11.2 … even if the guarantor approves the debt or repays a part of the debt There is no interruption in the prepayment of the main debt. The suspension of the indemnity of the guarantee obligation is effective for the main debt only in the court case.
Basically, if either the primary debtor or the joint surety falls under the suspension period, both periods will be suspended.
However, it can be seen that the progress of the statute of the primary debtor is not interrupted if it is seen only when the guarantor has approved the debt.
In other words, even if the joint guarantor repays the debt, the statute of the main debtor continues to progress, and it is possible to use the statute of imposition as the statute of limitations passes.
On the contrary, if the main debtor makes a partial reimbursement near the completion of the prescription or displays the intention to repay, the progress of the statute of solidarity guarantor will be reset and extended, so the use of the main debtor in the mediation aid It is very important to check if the debt has not been approved.
He explained that the statute of limitations will be suspended if the cessation of statute falls under either, except when the joint surety has approved the debt.
However, the situation is different if there is “Debt approval” after the expiration of the detention period.
If the main debtor repays the debt or indicates the intention to repay after the statute of limitations has already passed, the main debtor will lose the statute of incorporation aid but the joint custodian’s statute of incorporation aid will not be lost Hmm.
|Main debt||Guaranteed debt|
|The main debtor approved the debt after the expiration period||I lose the right to invoke the prescription||I do not lose the right of limitation|
In other words, the joint guarantor is able to use the prescription.
Before and after the expiration, please be aware that the impact of debt approval is different.
There may be cases where a joint guarantor is required to make a judicial bill, not the main debtor
The proceedings of the statute are reset and extended when the complaint and payment reminder documents arrive from the court, but the results will vary depending on the target person (the main debtor or the joint surety) if a decision is made by this request.
|Target of judgment||Main debt||Guaranteed debt|
|Main debtor||The aging process is reset, and the aging period is extended to 10 years.||The aging process is reset, and the aging period is extended to 10 years.|
|joint guarantor||The progress of the prescription does not stop.
It is said that the extension of the prescription for the guarantee debt does not affect the maturity of the main debt.
|The aging process is reset, and the aging period is extended to 10 years.|
Depending on the creditors, it may be determined that the joint surety is more repayable than the main obligor, and may make a legal request against the joint surety rather than the main obligor.
In such a case, the joint guarantor will be obliged to repay on behalf of the principal debtor.
However, the detention of the main debtor does not stop.
※ Because it is an answer in light of past judicial precedents and court cases, it is not defined in the Civil Code, so the possibility of being changed in the future is not zero.
In this way, there may be different patterns when the primary debtor can use the prescription and the joint guarantor can use the prescription.
If a ruling is made against a joint guarantor, the period of detention will be extended by 10 years.
However, there is no problem as long as the main debtor satisfies the conditions that can be used for the statute of limitations.
The joint guarantor has the right to invoke the prepayment of the main debtor, so by using the prepayment of the main debtor, both the main debtor and the guarantor will lose debt.
If the joint guarantor applies the prepayment of the main debt to an expert (lawyer, judicial scrivener)
If you use your own debt as a prejudice, you will immediately be able to see if there is a “debt approval” or “judicial claim”.
However, there are a lot of problems that must be cleared in order for the joint guarantor to use the debt of the main debtor as an aid.
- Does the main debtor who can not be contacted do the act which corresponds to the cessation of prescription limitation once?
- Was the request document (complaint and payment reminder) not received from the court under the main debtor?
- Is the period for which the principal obligor’s debt has been fixed has definitely passed?
If you want to use the prescription as a joint guarantee, ask a legally authorized professional (lawyer, judicial scrivener).
As the work content and the charge for the lawyer and the judicial scrivener are different, please choose the one that matches and consult.
|Business content||Acting on the same date for debts of ¥ 1,400,000 or less.
You can create and mail a notice of support for prescription in the name of a judicial scrivener, and you can also search for completion of prescription and interact with a creditor.
If it has developed into a lawsuit with a creditor, there is a proxy right up to the simple trial.
※ About self-bankruptcy and personal reproduction, only document making agency right
|usage fee||30,000-40,000 yen for one company
If there are two or more companies, 20,000 to 30,000 per company
|Business content||Be able to represent the work required for all prepayments.
It is possible to cope with the failure to use the prepayment, resulting in debt consolidation, personal bankruptcy, etc.
|usage fee||30,000-80,000 yen ※ The amount of money varies depending on the content and lawyer to request|
In this way, they do all the complex research and document exchange on their behalf.
The cost is not too high, so it is recommended that you consult a specialist if you want to use a prescription.
※ In the case of administrative scriveners, they have a proxy only for writing documents, so they can be effective and cost-effective if conditions for completion of aging are met.
[Summary] The debt that took over will be released from the joint guarantor by using the prescription
Finally, I tried to summarize the points about the co-guarantor’s use of prejudice.
- The joint guarantor is obliged to repay in the same way as the principal debtor.
- It is possible that the joint guarantor will not have to repay the debt if the prescription is used.
- There are conditions for the main debtor and the joint guarantor to invoke the prescription.
- Since the joint guarantor has the right to use the primary debtor’s statute of limitations, the primary debtor’s statute of limitations can be used to abolish his obligation to repay debts.
- Be careful about the suspension of detention.
For those who have been repaying debts in place of the main debtor over the long term, and those who have suddenly received a request for debt that became a joint guarantor many years ago, the statute of the main debtor is completed There is a possibility that you should consult with a lawyer, judicial scrivener or other specialist.
The Avance Legal Office is a good choice if you want to consult about the prepayment of debt.