Recently, the Ministry of Housing and Urban-Rural Development has distinguished independent guarantee from non-independent guarantee, and issued eight demonstration texts: bid guarantee, advance payment guarantee, payment guarantee and performance guarantee.
The model text is a non-mandatory text recommended by the Ministry of Housing and Urban-Rural Development. It stipulates the scope, amount, method and time limit of the guarantee, and makes arrangements for the undertaking, rescission and compensation of the guarantee responsibility, which will play a positive role in maintaining the order and perfecting the supervision of the project guarantee market.
1. Scope and amount of guarantee
Project guarantee is the guarantee provided by the guarantor to the guaranteed party based on the debtor's request to fulfill the obligations under the contract signed with the guaranteed party. Therefore, the model text is clear: the scope of the guarantee is that the debtor fails to perform his obligations as agreed, and should bear the liability for breach of contract to the guaranteed party and compensate the losses, interests, attorney fees, legal fees and other expenses for realizing the creditor's rights; The amount of guarantee shall be determined by the debtor and the guarantor through consultation according to the characteristics and specific conditions of different construction projects, and the upper limit shall be stipulated in the letter of guarantee.
Under the bid bond, the applicant (debtor) shall perform the obligations stipulated in the tender documents, including not canceling the bid after the bid opening and before the expiration of the bid validity period, signing the contract in time after receiving the letter of acceptance, and submitting the performance guarantee after signing the contract. Under the performance guarantee, the contractor (debtor) performs its obligations according to the agreement of the main contract (independent guarantee is called the basic contract); Under the advance payment guarantee, the contractor (debtor) shall correctly and reasonably use the advance payment for contract purposes in accordance with the contract, and shall not use the advance payment for other purposes; Under the payment guarantee, the Employer (debtor) shall perform the project payment obligations other than the project quality warranty stipulated in the main contract.
First of all, it should be noted that subordinate guarantee and independent guarantee have different names for the parties: the guarantor of subordinate guarantee corresponds to the issuer of independent guarantee, the debtor of subordinate guarantee refers to the applicant of independent guarantee, and the guarantor of subordinate guarantee refers to the beneficiary of independent guarantee.
Secondly, it needs to be clear that the model text does not stipulate the exemption of independent letters of guarantee, but unifies the exemption clauses of dependent letters of guarantee: if the debtor fails to perform its obligations due to the guarantor's reasons or force majeure, the guarantor will not bear the guarantee responsibility; In accordance with the law or otherwise agreed between the guarantor and the debtor, the guarantor is relieved of part or all of the debtor's debts, and the guarantor is also relieved of its corresponding guarantee liability.
2, the way and duration of the guarantee
The model text makes it clear that the guarantee method of subordinate letter of guarantee is joint and several liability guarantee, that is, the guarantor and the debtor are required to bear joint and several liability for the debt: the guarantor can ask the debtor to perform the debt or ask the guarantor to bear the guarantee liability within the scope of its guarantee, and the guarantor has no right of defense. Therefore, the guarantor of a non-independent guarantee cannot refuse to perform the guarantee obligation on the grounds that the debtor is required to perform the debt first; As long as the debtor fails to perform its obligations, even if the debtor has the ability to perform, the secured party may require the guarantor to assume the guarantee responsibility.
As for the independent letter of guarantee, the model text emphasizes that it is an independent letter of guarantee payable at sight, so it is different from the general guarantee and joint liability guarantee stipulated in the Guarantee Law. As long as the issuer of the independent letter of guarantee receives the written notice of payment from the beneficiary, it needs to bear the guarantee responsibility.
Whether it is an independent guarantee or a non-independent guarantee, it will take effect from the date when the legal representative or authorized representative of the self-insurance witness/issuer signs and seals it; The guarantee period (the guarantee period of non-independent guarantee corresponds to the validity period of independent guarantee) is from the date when the guarantee is issued to a few days after the debtor's obligation performance period (in the bid guarantee, if the bid validity period is extended, the guarantee period will be extended accordingly). The specific time limit and deadline shall be determined by the debtor and the guarantor through consultation and specified in the letter of guarantee.
3. assume and terminate the guarantee responsibility
Corresponding to the joint and several liability guarantee, in the subordinate guarantee, the model text requires the guarantor of the advance payment guarantee and the payment guarantee to perform the payment obligation on behalf of the debtor after receiving the written claim notice sent by the guarantor and verifying it, and compensate the losses caused to the guarantor, as well as the expenses for realizing the creditor's rights such as interest, lawyer's fees and legal fees; Require the guarantor of the bid bond to pay the bid bond on behalf of the bidder and compensate for the losses; In the performance bond, the guarantor needs to assist the original contractor, entrust a new insurer or personally perform the contractual obligations, or assume the liability for compensation according to the guarantor's requirements.
Accordingly, the model text is clear: if the guarantee period expires (in the case of independent guarantee, the guarantee period expires) and the amount paid by the guarantor reaches the maximum guarantee amount, the guarantee liability shall be discharged according to law; Regardless of whether the guarantor returns the original letter of guarantee as agreed, the obligations and responsibilities of the guarantor under the letter of guarantee will automatically disappear.
For an irrevocable and non-transferable independent letter of guarantee on demand, the underlying transaction under the letter of guarantee is not established, invalid, invalid, revoked or dissolved, which does not affect the independence and validity of the letter of guarantee. Therefore, in the independent letter of guarantee, the model text requires the issuer of the letter of guarantee to pay unconditionally after receiving the written notice of payment sent by the beneficiary, and the payment period is determined by the applicant and the issuer through consultation and stipulated in the letter of guarantee.
It is worth noting that, regardless of independent guarantee or subordinate guarantee, the model text emphasizes that "the rights under this guarantee shall not be transferred, and the guarantee shall not be created", and it is clear that "your transfer of this guarantee or any rights under it will have no legal effect on our bank without our written consent", aiming at prohibiting the transfer, mortgage, pledge or disposition of the rights under this guarantee in any other way, and fully guaranteeing the realization of the guarantor's right of recourse.
It is not difficult to find that the revised demonstration text of engineering guarantee is more suitable for the needs of the current construction market and helps to solve the outstanding problems existing in the current engineering guarantee industry; It is also helpful to clarify the rights and responsibilities of all parties and bring a "tight spell" to the healthy development of project guarantee. This is in line with the "Four Model Clauses of Guarantee Insurance Industry in Construction Engineering Field" issued by insurance institute of china in September 20 19, which will strongly promote the construction of guarantee system in construction engineering field and promote the healthy development of construction market.