And relevant judicial interpretations Guarantee by fdjerue7eeu

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									And relevant judicial interpretations Guarantee
Supreme People's Bank of Communications Hong Kong Branch and Hong
Kong on cloud Foundation Limited, Yunfu City People's Government loan
guarantee contract dispute case appeal "Commitment Letter"
constitutes a security problem consult the replies
(October 11, 2006 [2006] he word people 4 No. 27)

Guangdong Provincial Higher People's Court:
Your School [2004] China Guangdong Supreme People's Court No. 153
four final word "on the Bank of Communications Hong Kong Branch and
the Hong Kong cloud Foundation Limited, Yunfu City People's
Government loan guarantee contract dispute appeals case <Letter>
constitute a security problem consult" received. By the following reply:
Yunfu Municipal People's Government issued the "Commitment
Letter" constitutes our "Guarantee Law" sense of
assurance, should you Yunfu City People's Court issued under the
"Letter" in the background, "Letter," the
content and the identification of to identify other facts;
In the case of external security, the citizens of our country to foreign creditors
personal security, if there exists a Supreme People's Court "on
the application <The People's Republic of China Guarantee
Act" to explain a number of issues, "Article VI of the
circumstances, be legally recognized as invalid. In this case citizens of our country
Lai Bin, Chen Jing to the Bank of Communications Hong Kong Branch of the
existence of the guarantee provided above, shall be reviewed according to the law of
your court.
This complex.

Attachment:
Higher People's Court of Guangdong Province and Hong Kong, Hong
Kong Branch of Bank of Communications Co., Ltd. Cloud Foundation, Yunfu
Municipal People's Government and other loan secured contract dispute
case appeal "Commitment Letter" constitutes a security issue
PEOPLE
(May 10, 2006 [2004] China Guangdong Supreme Court the final word four No. 153)

Supreme Court:
I heard the appellant hospital (the trial the defendant) Hong Kong cloud Foundation
Limited (Hong Kong cloud company), Yunfu Municipal People's
Government (hereinafter referred to Yunfu City), Yunfu City, energy and
transportation development company (hereinafter referred to as Energy Corporation),
Lai Bin, Chen Jing, Liu Jieguang, Wu Shangguo and appellee (plaintiff trial) Bank of
Communications Hong Kong Branch (hereinafter referred to as the Hong Kong
Exchange Bank) loan guarantee contract dispute case, the Government's
"Commitment Letter" constitutes a security issue have different
views Jun hospital to consult the following characteristics:
First, the basic situation of the case
May 16, 1995, Yunfu city government to the Hong Kong Bank of Communications
issued a "letter of commitment", said: "Hong Kong
is my cloud, Yunfu city of Hong Kong companies, for the further development of
foreign trade operations of the company, the company Special to the Bank for general
letters of credit, trust and delivery, back to back letters of credit and overdraft
facilities (bank to facilitate a total of five thousand million). The line of credit
applications have been approved by municipal government I agree, the Bank
according to the actual needs of the company's business development , to
support it. I would urge the Hong Kong City company effectively defaults in payment,
on time and the return of the Bank loan. If the company default or delinquency occurs
Bank loan principal and interest, I will be responsible for solving the city, not to your
Bank economic losses. "
After the Hong Kong Exchange Bank and Hong Kong signed a credit contract, cloud,
cloud to Hong Kong provided the overdraft, installment loans, credit, trust banks such
as credit delivery, in the relevant credit contract will be the "Commitment
Letter" as a guarantee of legal documents .
September 2, 1998, Energy Corporation and the Hong Kong Bank of
Communications signed a "guaranteed contract", a security
company in Hong Kong to the Hong Kong and cloud the main line of the debt,
interest, taxes and all expenses arising therefrom not more than 40 million Hong Kong
dollars, to ensure way for joint and several guarantee, and agreed to ensure the
contract is continuous, unconditional guarantee, applicable laws of China.
June 12, 2000, the Hong Kong company and Hong Kong to the line of clouds to sign
a restructuring of the nature of the credit contract, to confirm line owed to Hong Kong
to the principal balance of: (1) overdraft HK 1,158,513.37 yuan; (2) installment loan
Some HK 10,276,706.37 yuan; (3) letters of credit part of the HK 7,133,072.76 yuan;
(4) one-off credit part of the Hong Kong dollar 3.315 million yuan. In addition to the
method of calculating interest on overdue interest and has been agreed. The third
document is a security document of agreement, within two minutes. The first, entitled
"is now available to all of the following banks collateral and / or legal
documents are still valid", which is divided into three: the first property
companies in Hong Kong cloud mortgage, the second as "the the following
persons be duly executed on the repayment of all money secured individual and joint
private contract: (Ⅰ) Chen Jing, (Ⅱ) Lai Bin, (Ⅲ) Liu Jieguang, (Ⅳ) Wushang Guo,
"the third" Other: (Ⅰ ) Yunfu Municipal People's
Government Letter; ( Ⅱ ), Yunfu City, energy and transportation development
company guarantee the contract. " Hong Kong director Lai Yun-Bin, Chen
Jing, Liu Jieguang, Wu Shangguo as a guarantor to sign the document.
July 17, 2000, Hong Kong, Bank of Communications commissioned Gu Kai Yan Yun
Hong Kong law firm sent letters to companies and Yunfu city, energy corporation, Lai
Bin, Chen Jing, Liu Jieguang, Wushang Guo, asking them to fulfill their obligations.
Recourse loans to the Hong Kong Bank of Communications Hong Kong High Court
to sue the company in Hong Kong cloud. November 16, 2000, Hong Kong High
Court proceedings in 2000 Miscellaneous Order No. 4663, confirmed that the Bank
may pay to the Port of Hong Kong goes to recover HK 15,112,555.95 yuan and U.S.
dollars 1,049,454.82 yuan, together with outstanding interest. Cloud properties in
Hong Kong Mortgage Corporation shall, 30 Canton Road, Kowloon, Newport Centre,
Room 607, 6th Floor, Tower 1, Office of possession to the Hong Kong Bank of
Communications. Since then, the Hong Kong Exchange Bank through the
implementation of the real property collateral recoveries 8,248,801.75 HK, Hong
Kong and the repayment in two cloud companies 200 000 Hong Kong dollars. As of
January 28, 2002, Hong Kong and cloud the company still owed to the Hong Kong
dollar and cross-line principal 10,216,240.37 422,409.33 U.S. dollars. Also owed to
Hong Kong to the disposal line, including collateral expenses 101,569.06 dollar and
10,750 yuan. Hong Kong Bank of Communications on April 9, 2002, Guangzhou City
Intermediate People's Court to the prosecution, requested ruling Hong
Kong company to repay the outstanding loan principal and interest Cloud and other
costs, Yunfu City, Lai Bin, Chen Jing, Liu Jieguang, Wu Shangguo undertake to
ensure the security responsibility Energy Corporation to bear several and joint
liability.
First instance by the trial court that the case related to Hong Kong Department of
secured loans and contract dispute, the case should be handling foreign cf. Hong
Kong and Hong Kong to the cloud line companies recognize the fact and agree to the
repayment of borrowing, but there is disagreement on the amount owed. In this regard,
Hong Kong, Hong Kong, Bank of Communications submitted by the High Court
ruling, there is evidence relevant to corroborate evidence of the debt occurred, Hong
Kong and cloud the company did not refute the evidence to the contrary, it is
determined by the High Court of Hong Kong amount of debt can be used as facts of
the case identified. After the High Court of Hong Kong, Hong Kong Exchanges and
disposal of the mortgaged property line to offset part of the arrears. Hong Kong
Exchange Bank after the credit balance of the deductible under the request of fair and
valid, be supported.
Yunfu city government issued a "Commitment Letter" clear
"if the company appears overdue or delinquent principal and interest, I will
be responsible for solving the city, not to line your economic losses,"
clouds of its content is on behalf of the Hong Kong company to repay the meaning of
debt in line with "civil law" in Article 89th
"guarantor to the creditor that the debtor defaults, the debtor defaults, and
in accordance with the agreement by the guarantor to perform or undertake joint and
several liability" requirement, "Commitment Letter"
to accept the Hong Kong Bank of Communications , as a security document to be
included in the credit agreement, it should be recognized, Yunfu City Bank and Hong
Kong to ensure the contract is established between. Mainland of China expressly
prohibited by law as a guarantor state organs, Yunfu city government to provide
security as "Civil Law" fifth 18 on the violation of civil law
cases invalid, it shall be deemed issued Yunfu city, "Letter" is
invalid. Yunfu city government can not knowingly act as the guarantor of state organs
and the nature of issuing a guarantee, "Commitment Letter";
Hong Kong to the line should know that our law prohibits state agencies to accept
Yunfu city government as a guarantor of security, fault on both the security void.
Yunfu city cloud company should repay the debt in Hong Kong bear the half part of
the liability.
Energy Corporation and the Hong Kong Bank of Communications signed a
"guaranteed contract" is the external security, because without
the state foreign exchange control department's approval null and void,
both parties fault. The case of debt, the energy goes to Hong Kong head office should
be part of the company is unable to discharge half of the liability.
Lai Bin, Chen Jing, Department of PRC citizens, do not have the provision of external
security of the main qualifications for the Hong Kong company's debt
cloud security is invalid, should the company were unable to settle on part of Hong
Kong cloud of half the debt liability. Liujie Guang, Wu Shangguo Department of
Hong Kong residents, the Hong Kong company's debt guarantee cloud
their true intention, it should be borne in accordance with the agreed warranty.
In summary, according to "Civil Law" fifth paragraph 18 (e),
第六十一条 first, "Security Law" and the second paragraph of
Article Fifth Supreme People's Court "on implementation of the
<Civil Law> the views of a number of issues (for trial implementation)
"Article 6, the Supreme Court" on the application of
<Guarantee Act "Interpretation of Several Issues"
Article VI (a), Article VII, the provisions of the first paragraph of Article 2, first
instance court: Hong Kong Bank Hong Kong to cloud the company to repay the
principal amount of HK 10,216,240.37 yuan, the dollar 422,409.33 yuan and interest,
settlement of HK 101,569.06 yuan and other costs 10,750 yuan; on the debt, Liujie
Guang, Wu Shangguo assume joint and several settlement responsibility; Yunfu city,
energy corporation, Lai Bin, Chen Jing Yun in Hong Kong within the
company's commitment to repay part of one half of the liability.
Hong Kong cloud company, Yunfu City, energy corporation, Lai Bin, Chen Jing, Liu
Jieguang, Wu Shangguo refused to accept the trial decision, appeal to our hospital,
requesting the repeal of the original verdict, dismissed the visit Hong Kong to sue.
Second, consult the question
At issue is the second instance the case: Yunfu city trip to Hong Kong to the issue of
"Letter" is the nature of the comfort letter urging payment or
repayment of a security nature of the guarantee contract.
Regarding the "Commitment Letter" problem, Guangdong
Province in recent years courts have heard a number of cases involved, the wording
consistent. In 2003, the Judicial Committee in the discussion in our hospital [2002]
China Guangdong Supreme Court the final word 4 No. 55, Foshan government
security disputes with the Bank of Communications Hong Kong Branch of the case,
that the "Commitment Letter" in "the Government
will be responsible for solving , not to bank losses in the economy, "the
statement, with the intention to guarantee security

								
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