最高人民法院借款担保合同纠纷案件判决书 （中英文） CIVIL JUDGMENT OF LOAN GUARANTEE CONTRACT 本案系中国工商银行股份有限公司三门峡车站支行与三门峡天元铝业股份有限公司、三门峡天元铝业集团有限公司借款担保合同纠纷案 Case of dispute over loan gua

最高人民法院借款担保合同纠纷案件判决书 （中英文）
         CIVIL JUDGMENT OF LOAN GUARANTEE CONTRACT
 
 
本案系中国工商银行股份有限公司三门峡车站支行与三门峡天元铝业股份有限公司、三门峡天元铝业集团有限公司借款担保合同纠纷案
Case of dispute over loan guarantee contracts among Sanmenxia Station Branch of Industrial and Commercial Bank of China Ltd. v. Sanmenxia Tianyuan Aluminum Company Limited and Sanmenxia Tianyuan Aluminum Industry Group Co., Ltd.
 
 
最高人民法院Supreme People’s Court
 
民事判决书Civil Judgment
 
　　(2008)民二终字第81号No.81 [2008], Final, Civil Division II, SPC
 
上诉人(原审原告)：中国工商银行股份有限公司三门峡车站支行。住所地：河南省三门峡市崤山中路7号。
Appellant (Plaintiff in the Original Instance): Sanmenxia Station Branch of Industrial and Commercial Bank of China Ltd.Address: 7 Xiaoshan Middle Road, Sanmenxia City, Henan Province.
 
　　负责人：董超群，该支行行长。Person in charge: Dong Chaoqun, head of this branch.
 
委托代理人：柴轶，中国工商银行三门峡分行职员。
Authorized representative: Chai Yi, employee of this branch.
 
委托代理人：许欣海，北京市远东律师事务所律师。
Attorney: Xu Xinhai, lawyer of Beijing Far East Law Firm.
 
被上诉人(原审被告)：三门峡天元铝业股份有限公司。住所地：河南省三门峡市东风南路10号。
Appellee (Defendant in the Original Instance): Sanmenxia Tianyuan Aluminum Company Limited.Address: 10 Dongfeng South Road, Sanmenxia City, Henan Province.
 
法定代表人：李和平，该公司董事长。
Legal representative: Li Heping, chairman of the board of directors of this company.
 
委托代理人：宋东珉，该公司职员。
Authorized representative: Song Dongmin, employee of this company.
 
委托代理人：郭亚平，河南世纪通律师事务所北京分所律师。
Attorney: Guo Yaping, lawyer from the Beijing Branch of Henan Shijitong Law Office.
 
原审被告：三门峡天元铝业集团有限公司。住所地：河南省三门峡市东风南路 10号。
Defendant in the Original Instance: Sanmenxia Tianyuan Aluminum Industry Group Co., Ltd.Address: 10 Dongfeng South Road, Sanmenxia City, Henan Province.
 
法定代表人：朱强，该公司董事长。
Legal representative: Zhu Qiang, chairman of the board of directors of this company.
 
上诉人中国工商银行股份有限公司三门峡车站支行(以下简称三门峡车站工行)为与被上诉人三门峡天元铝业股份有限公司(以下简称天元股份公司)，原审被告三门峡天元铝业集团有限公司(以下简称天元集团公司)、原三门峡天成电化有限公司 (已破产终结，以下简称天成电化公司)借款担保合同纠纷一案，不服河南省高级人民法院(2006)豫法民二初字第44号民事判决，向本院提起上诉。本院依法组成由审判员张树明担任审判长，代理审判员王华菊、代理审判员沙玲参加的合议庭进行了审理。书记员赵穗军担任记录。本案现已审理终结。
For disputes over loan guarantee contracts with the appellee, Sanmenxia Tianyuan Aluminum Company Limited (hereinafter referred to as “Tianyuan Joint-stock Company”), and the defendants in the original instance, Sanmenxia Tianyuan Aluminum Industry Group Co., Ltd. (hereinafter referred to as “Tianyuan Group Company”) and former Sanmenxia Tiancheng Electrochemical Co., Ltd. (having been terminated under bankrupt procedures, hereinafter referred to as “Tiancheng Electrochemical Company”), the appellant, Sanmenxia Station Branch of Industrial and Commercial Bank of China Ltd. (hereinafter referred to as “Sanmenxia Station Branch of ICBC”) appealed the civil judgment (No. 44 [2006], First Instance, Civil Division II, Higher People’s Court of Henan Province) to this Court. This Court legally formed a collegial panel consisting of chief judge Zhang Shuming, acting judge Wang Huaju and acting judge Sha Ling to try this case, with court clerk Zhao Suijun keeping the court record. So far, the trial of this case has been concluded.
 
原审法院审理查明：2000年9月22日，三门峡车站工行与天元集团公司签订 (2000)三工车信字第010号借款合同，约定天元集团公司向三门峡车站工行借款 1700万元，借款用途为借新还旧，借款期限自签约当日至2002年9月21日。同日，三门峡车站工行向天元集团公司发放了该笔借款。2002年9月11日，天元集团公司偿还了该笔借款。次日，双方又签订了 (2002)三工车信字第039-1号、第039-2号借款合同，分别约定天元集团公司向三门峡车站工行借款900万元和800万元，用途均为借新还旧，借款期限自签约当日至2003年9月5日。三门峡车站工行于签约当日发放了该两笔借款。2003年9月3日，天元集团公司偿还了该两笔共计1700万元借款。2003年9月5日，双方签订了 (2003)三工车信字第039号借款合同，约定天元集团公司向三门峡车站工行借款 1600万元，用途为购原材料，借款期限自签约当日至2004年8月25日。三门峡车站工行于签约当日发放了该笔借款。2004年8月3日，天元集团公司偿还了该笔借款。2004年8月5日，双方签订(2004)三工车信字第37号借款合同，约定天元集团公司向三门峡车站工行借款1590万元，用途为购原材料，借款期限自签约当日至 2005年8月3日。
Upon trial, the court of the original instance found that: on September 22, 2000, Sanmenxia Station Branch of ICBC concluded a loan contract (No. 010 [2000] of Sanmenxia Station Branch of ICBC) with Tianyuan Group Company, agreeing that Tianyuan Group Company would borrow 17 million yuan from Sanmenxia Station Branch of ICBC for the purpose of repayment of old ones, and the term of the loan should be from the date of conclusion of the contract to September 21, 2002. On the same day, Sanmenxia Station Branch of ICBC released this loan to Tianyuan Group Company. On September 11, 2002, Tianyuan Group Company repaid this loan. On the next day, both parties concluded two loan contracts (No. 039-1 and No. 039-2 [2002] of Sanmenxia Station Branch of ICBC), agreeing respectively that Tianyuan Group Company would borrow 9 million yuan and 8 million yuan from Sanmenxia Station Branch of ICBC for repayment of old ones, and the term of loans should be from the date of conclusion of the contracts to September 5, 2003. Sanmenxia Station Branch of ICBC released the two loans on the date of conclusion of the contracts. On September 3, 2003, Tianyuan Group Company repaid these two loans totaling 17 million yuan. On September 5, 2003, both parties concluded a loan contract (No. 039 [2003] of Sanmenxia Station Branch of ICBC), agreeing that Tianyuan Group Company would borrow 16 million yuan from Sanmenxia Station Branch of ICBC for purchasing raw materials, and the term of loan should be from the date of conclusion of the contract to August 25, 2004. Sanmenxia Station Branch of ICBC released this loan on the date of conclusion of the contract. On August 3, 2004, Tianyuan Group Company repaid this loan. On August 5, 2004, both parties concluded a loan contract (No. 37 [2004] of Sanmenxia Station Branch of ICBC), agreeing that Tianyuan Group Company would borrow 15.9 million yuan from Sanmenxia Station Branch of ICBC for purchasing raw materials, and the term of loan should be from the date of conclusion of the contract to August 3, 2005.
 
2000年9月25日，双方签订(2000)三工车信字第009号借款合同，约定天元集团公司向三门峡车站工行借款1647万元，用途为借新还旧，借款期限自签约当日至2002年9月24日。三门峡车站工行于签约当日发放了该笔借款。2002年9月11日，双方签订了(2002)三工车信字第038- 1号和(2002)三工车信字第038-2号借款合同，分别约定天元集团公司向三门峡车站工行借款1200万元和800万元，用途均为“还旧借新，购原材料”，借款期限自签约当日至2003年9月10日。三门峡车站工行于签约当日发放了该两笔借款。天元集团公司收到2000万元借款的次日偿还了 (2000)三工车信字第009号借款合同项下的1647万元借款。天元集团公司于2003年8月4日向三门峡车站工行偿还了220万元，于2003年9月8日向三门峡车站工行偿还1200万元、800万元。2003年8月 7日，双方签订(2003)三工车信字第35号借款合同，约定天元集团公司向三门峡车站工行借款710万元，用途为购原材料，借款期限自签约之日至2004年8月6日。 2003年8月29日，双方签订(2003)三工车信字第38号借款合同，约定天元集团公司向三门峡车站工行借款1490万元，用途为购原材料，借款期限自签约之日至2004年8月29日。该两笔借款均于签约当日发放。天元集团公司于2004年8月5日分别偿还了该两笔借款。2004年8月6日，三门峡车站工行与天元集团公司又签订了 (2004)三工车信字第38号和第39号借款合同，分别约定天元集团公司向三门峡车站工行借款1480万元和700万元，该两笔借款于2005年8月5日到期。
On September 25, 2000, both parties concluded a loan contract (No. 009 [2000] of Sanmenxia Station Branch of ICBC), agreeing that Tianyuan Group Company would borrow 16.47 million yuan from Sanmenxia Station Branch of ICBC for repayment of old ones, and the term of loan should be from the date of conclusion of the contract to September 24, 2002. Sanmenxia Station Branch of ICBC released this loan on the date of conclusion of the contract. On September 11, 2002, both parties concluded two loan contracts (No. 038-1 [2002] and No. 038-2 [2002] of Sanmenxia Station Branch of ICBC), agreeing respectively that Tianyuan Group Company would borrow 12 million yuan and 8 million yuan from Sanmenxia Station Branch of ICBC for “repaying old loans and purchasing raw materials”, and the term of loans should be from the date of conclusion of the contracts to September 10, 2003. Sanmenxia Station Branch of ICBC released these two loans on the date of conclusion of the contracts. Tianyuan Group Company repaid the loan of 16.47 million yuan under the loan contract No. 009 [2000] of Sanmenxia Station Branch of ICBC the next day after it received the loans of 20 million yuan. Tianyuan Group Company repaid 2.2 million yuan to Sanmenxia Station Branch of ICBC on August 4, 2003, and 12 million yuan and 8 million yuan to it on September 8, 2003. On August 7, 2003, both parties concluded a loan contract (No. 35 [2003] of Sanmenxia Station Branch of ICBC), agreeing that Tianyuan Group Company would borrow 7.1 million yuan from Sanmenxia Station Branch of ICBC for purchasing raw materials, and the term of loan should be from the date of conclusion of the contract to August 6, 2004. On August 29, 2003, both parties concluded a loan contract (No. 38 [2003] of Sanmenxia Station Branch of ICBC), agreeing that Tianyuan Group Company would borrow 14.9 million yuan from Sanmenxia Station Branch of ICBC for purchasing raw materials, and the term of loan should be from the date of conclusion of the contract to August 29, 2004. Both loans were released on the date of conclusion of contracts. Tianyuan Group Company repaid these two loans respectively on August 5, 2004. On August 6, 2004, Sanmenxia Station Branch of ICBC and Tianyuan Group Company concluded two loan contracts (No. 38 and No. 39 [2004] of Sanmenxia Station Branch of ICBC), agreeing respectively that Tianyuan Group Company would borrow 14.8 million yuan and 7 million yuan from Sanmenxia Station Branch of ICBC, and these two loans should mature on August 5, 2005.
 
上述三笔借款均由天成电化公司提供连带责任担保。
Tiancheng Electrochemical Company, as the guarantor, assumed the joint and several liability for the repayment of the aforesaid three loans.
 
原审法院另查明：天元股份公司于 2000年8月由天元集团公司、白银氟化盐有限责任公司、焦作市冰晶石厂、河南省第六建筑工程公司、焦作市焦铝碳素厂五家法人股东设立的股份有限公司，注册资金 6800万元。天元集团公司出资65 176 184元，占总股本的95．84％。亚太评估事务所以1999年11月30日为基准日对天元集团公司的资产进行评估，结论为天元集团公司的净资产为9232．6万元。2000年9月 21日，天元集团公司向三门峡车站工行出具的承诺书载明：天元集团公司以现有优良资产(电解一分厂、电解二分厂、动力车间等辅助车间)作为股份投入，投资金额占 95．84％。2000年11月16日，天元集团公司和天元股份公司共同向三门峡车站工行出具《债务转移协议补充承诺》，该书面承诺第二条内容为：“为了使三门峡车站工行的债权不受天元集团公司改制的影响，确保三门峡车站工行信贷资产安全，天元集团公司再以十万吨电解铝扩建工程竣工后总资产作为偿还三门峡车站工行债务的保证，如果天元集团公司确实无力归还三门峡车站工行的债务，那么由天元股份公司负责归还。”
The court of the original instance also found that: Tianyuan Joint-stock Company was a joint stock limited company formed by five legal person shareholders: Tianyuan Group Company, Silver Fluoride Salt Limited Liability Company, Jiaozuo Cryolite Factory, Henan No.6 Construction Company and Jiaozuo Coke Aluminum Carbon Factory, and its registered capital was 68 million yuan. Tianyuan Group Company invested 65,176,184 yuan in the company, which accounted for 95.84% of the total capital stock of the company. According to the results of assessment conducted by Asia-pacific Assessment Office of the assets of Tianyuan Group Company with November 30, 1999 being the benchmark date, the value of net assets of Tianyuan Group Company was 92,326,000 yuan. On September 21, 2000, Tianyuan Group Company issued a letter of commitment to Sanmenxia Station Branch of ICBC, stating that: Tianyuan Group Company invested its current good assets (the first branch of electrolysis factory, the second branch of electrolysis factory, power workshop and other auxiliary workshops) for shares of the above company, and the amount of investment accounted for 95.84%. On November 16, 2000, Tianyuan Group Company and Tianyuan Joint-stock Company jointly issued a Supplementary Letter of Commitment to Debt Transfer Agreements to Sanmenxia Station Branch of ICBC, Article 2 of which provided that: “For purposes of preventing the creditor’s rights of Sanmenxia Station Branch of ICBC from being affected by the systematic restructuring of Tianyuan Group Company and ensuring the safety of credit assets of Sanmenxia Station Branch of ICBC, Tianyuan Group Company shall provide its total assets after the completion of the 100,000-ton electrolytic aluminum expansion project as a guarantee for repaying its debts to Sanmenxia Station Branch of ICBC, and if Tianyuan Group Company is unable to repay its debts to Sanmenxia Station Branch of ICBC, Tianyuan Joint-stock Company shall be liable for repayment thereof.”
 
天成电化公司已于2007年5月12日破产还债。
Tiancheng Electrochemical Company went bankrupt for repaying debts on May 12, 2007.
 
三门峡车站工行于2006年8月28日向原审法院提起诉讼，请求判令：天元集团公司和天元股份公司共同偿还贷款本金 3770万元，利息3 754 860．16元(该利息计算至2006年7月20日，此后利息继续计算)；判令天成电化公司对上述债务在其担保的范围内承担连带清偿责任。
Sanmenxia Station Branch of ICBC instituted a lawsuit in the court of the original instance on August 28, 2006, requesting the court to rule that: Tianyuan Group Company and Tianyuan Joint-stock Company should jointly repay 37.7 million yuan of loan principal and 3,754,860.16 yuan of interest (which was calculated until July 20, 2006, and the interest thereafter should continue to be calculated) and Tiancheng Electrochemical Company should assume the joint and several liability for repaying the above debts within the extent of guarantee that it provided.
 
原审法院经审理认为：三门峡车站工行诉请天元集团公司偿还3770万元本金及3 754 860．16元利息，提供了借款合同、借据及逾期贷款催收通知书，证据充分，对三门峡车站工行的该项诉讼请求予以确认。天元股份公司与天元集团公司于2000年11月16日向其出具的《债务转移协议补充承诺》中关于“如果天元集团公司确实无力归还三门峡车站工行的债务，那么由天元股份公司负责归还”的承诺，该承诺具有保证的性质。因本案贷款是2000年的旧贷款经多次以贷还贷逐步演化而来并非 2004年发生的新贷款，天元股份公司在 2000年11月承诺与天元集团公司共同偿还的借款已经偿还，天元股份公司不应对 2004年发生的本案贷款承担保证责任。从天元集团公司2000年9月21日向三门峡车站工行出具的承诺书中载明的“天元集团公司以现有优良资产(电解一分厂、电解二分厂、动力车间等辅助车间)作为股份投入”的内容可以认定，天元集团公司以其优良资产与他人组建了天元股份公司。从天元股份公司的工商登记材料看，其主要股东是天元集团公司，其投入天元股份公司 65 176 184元，占总股本的95．84％，而经亚太评估事务所以1999年11月30日为基准日对其资产进行评估，其净资产价值为9232．6万元，由此可以认定天元集团公司将其大部分资产投入了天元股份公司。故天元集团公司应以其资产包括其拥有的天元股份公司的股权对三门峡车站工行的债务承担责任。由于本案贷款是2000年的旧贷款经多次以贷还贷逐步演化而来的，三门峡车站工行不能举证证明保证人天成电化公司对以新贷偿还旧贷明知或同意，也不能证明旧贷款的保证人同为天成电化公司，根据最高人民法院《关于适用＜中华人民共和国担保法＞若干问题的解释》第三十九条第一款关于“主合同当事人双方协议以新贷偿还旧贷，除保证人知道或者应当知道的外，保证人不承担民事责任”的规定，天成电化公司对本案借款不承担保证责任。
Upon trial, the court of the original instance was of the opinion that: for its claim against Tianyuan Group Company for repayment of 37.7 million yuan of loan principal and 3,754, 860.16 yuan of interest, Sanmenxia Station Branch of ICBC provided the loan contracts, receipts for the loans and notices of collection of overdue loans. Since the evidence was sufficient, this claim of Sanmenxia Station Branch of ICBC should be affirmed. The commitment in the Supplementary Letter of Commitment to Debt Transfer Agreements issued jointly by Tianyuan Joint-stock Company and Tianyuan Group Company to Sanmenxia Station Branch of ICBC on November 16, 2000 that “If Tianyuan Group Company is unable to repay the debts to Sanmenxia Station Branch of ICBC, Tianyuan Joint-stock Company shall be liable for the repayment thereof” was of a nature of guarantee. Because the alleged loans in this case were loans gradually evolving from the old loans in 2000 through several times of repayment of old loans with new ones and were not new loans made in 2004, and the loans which Tianyuan Joint-stock Company promised in November 2000 to repay jointly with Tianyuan Group Company had already been repaid, Tianyuan Joint-stock Company should not assume the guarantee liability for the alleged loans in this case made in 2004. In view of the statement in the letter of commitment issued by Tianyuan Group Company to Sanmenxia Station Branch of ICBC on September 21, 2000 that “Tianyuan Group Company invested its current good assets (the first branch of electrolysis factory, the second branch of electrolysis factory, power workshop and other auxiliary workshops) for shares”, it may be confirmed that Tianyuan Group Company formed Tianyuan Joint-stock Company with its good assets jointly with others. According to the industry and commerce registration materials of Tianyuan Joint-stock company, its major shareholder was Tianyuan Group Company, which invested 65,176,184 yuan in Tianyuan Joint-stock Company, accounting for 95.84% of the total capital stock of it. According to the assessment conducted by Asia-Pacific Assessment Office of the assets of Tianyuan Group Company with November 30, 1999 being the benchmark date, its net asset value was 92,326,000 yuan. It may be determined that Tianyuan Group Company had invested most of its assets in Tianyuan Joint-stock Company. Therefore, Tianyuan Group Company should be liable for its debts to Sanmenxia Station Branch of ICBC with its assets including the equities that it held in Tianyuan Joint-stock Company. The alleged loans in this case were loans gradually evolving from the old loans in 2000 through several times of repayment of old loans with new ones, and Sanmenxia Station Branch of ICBC could neither prove that the guarantor, Tiancheng Electrochemical Company, had known or consented to the repayment of old loans with new ones nor prove that the guarantors of the old loans were also Tiancheng Electrochemical Company. Pursuant to paragraph 1 of Article 39 of the Interpretation of the Supreme People’s Court on Some Issues Regarding the Application of the Guarantee Law of the People’s Republic of China, “Where the parties to the principal contract agree to repay an old loan with a new one, the guarantor shall not bear the civil liability for it unless the guarantor knows or should have known it”, Tiancheng Electrochemical Company should not bear the guarantee liability for the loans in this case.
 
原审法院依照《中华人民共和国合同法》第二百零五条、第二百零六条，《中华人民共和国担保法》第二十四条，最高人民法院《关于适用＜中华人民共和国担保法＞若干问题的解释》第三十九条第一款，《中华人民共和国民事诉讼法》第一百三十条、第一百三十四条、第一百三十八条、第一百四十七条、第二百三十二条之规定，判决：一、天元集团公司于判决生效后十日内向三门峡车站工行偿还借款3770万元本金及 3 754 860．16元利息(该利息计算至2006年7月20日，自2006年7月21日起的利息按照中国人民银行规定的同期逾期贷款利率计算至本判决限定的债务履行期限届满之日止)。对上述给付款项，当事人如果未按照本判决指定的期间履行给付金钱义务，应当依照《中华人民共和国民事诉讼法》第二百三十二条的规定，加倍支付迟延履行期间的债务利息；二、驳回三门峡车站工行的其他诉讼请求。一审案件受理费 217 284．3元，由天元集团公司负担。
In accordance with Articles 205 and 206 of the Contract Law of the People’s Republic of China, Article 24 of the Guarantee Law of the People’s Republic of China, paragraph 1 of Article 39 of the Interpretation of the Supreme People’s Court on Some Issues Regarding the Application of the Guarantee Law of the People’s Republic of China, and Articles 130, 134, 138, 147 and 232 of the Civil Procedure Law of the People’s Republic of China, the court of the original instance ruled that: (1) Tianyuan Group Company should repay 37.7 million yuan of loan principal and 3,754, 860.16 yuan of interest (which was calculated until July 20, 2006, and the interest from July 21, 2006 should be calculated until the date of expiration of the time limit for performance of the debt prescribed in this judgment at the overdue loan rate over the same period as prescribed by the People’s Bank of China) to Sanmenxia Station Branch of ICBC within ten days after this judgment came into force. For the aforesaid payments, if the party concerned failed to perform the obligation of pecuniary payment within the time limit as prescribed in this judgment, it shall, in accordance with 232 of the Civil Procedure Law of the People’s Republic of China, pay double debt interest for the period of delay in performance. (2) Other claims of Sanmenxia Station Branch of ICBC should be overruled. Tianyuan Group Company should pay the case acceptance fee of 217,284.3 yuan for the trial of the first instance of this case.
 
三门峡车站工行不服原审法院上述民事判决，向本院提起上诉称：一、原审法院已支持了三门峡车站工行关于本案3770万元贷款本金实际上形成于2000年，是 2000年旧贷款经多次以贷还贷的方式演化而来，并非是2004年新发生的贷款的主张，却又认定天元股份公司在2000年11月承诺与天元集团公司共同偿还的借款已经偿还，据此判决天元股份公司不应对 2004年发生的本案贷款承担还款责任，缺乏事实依据。天元集团公司至今尚欠车站工行借款本金共计达23 081万元，天元股份公司提供的证据中没有任何一份能够证明三门峡车站支行在本案中主张的3770万元贷款，已由其或天元集团公司偿还完毕。天元股份公司应当依据《债务转移协议补充承诺》承担还款责任。二、原审判决认定三门峡车站工行不能举证证明天成电化公司对本案以新贷偿还旧贷明知或同意，也不能证明旧贷款的保证人同为该公司，故天成电化公司对本案贷款不承担保证责任的认定违反了“谁主张，谁举证”的举证责任分配规则。对以贷还贷的事实是否明知以及前贷与后贷的保证人是否同一的事实，依法应由天成电化有限公司承担举证责任。天成电化有限公司作为担保人未能举证证明上述事实，应依法对本案贷款承担连带的还款责任。请求二审依法改判由天元股份公司对天元集团公司所欠借款本金3770万元及利息承担连带还款责任；改判天成电化公司对上述贷款本金及利息承担连带保证责任。
Sanmenxia Station Branch of ICBC appealed the aforesaid civil judgment of the court of the original instance to this Court, alleging that: (1) after sustaining the claim of Sanmenxia Station Branch of ICBC that the loan principal of 37.7 million yuan in this case was actually formed in 2000, was loans gradually evolving from the old loans in 2000 through several times of repayment of old loans with new ones and was not new loans made in 2004 but holding that the loans which Tianyuan Joint-stock Company promised in November 2000 to repay jointly with Tianyuan Group Company had already been repaid, the court of the original instance ruled that Tianyuan Joint-stock Company should not assume the repayment liability for the alleged loans in this case made in 2004. Such a ruling lacked the factual basis. So far, Tianyuan Group Company still owed Sanmenxia Station Branch of ICBC loan principal totaling 230.81 million yuan, and no evidence provided by Tianyuan Joint-stock Company could prove that the loan of 37.7 million yuan alleged by Sanmenxia Station Branch of ICBC in this case had been fully repaid by it or Tianyuan Group Company. Tianyuan Joint-stock Company should bear the repayment liability under the Supplementary Letter of Commitment to Debt Transfer Agreements. (2) The determination in the original judgment that Sanmenxia Station Branch of ICBC could neither prove that Tiancheng Electrochemical Company had known or approved the repayment of old loans with new ones in this case nor prove that the guarantors of the old loans were also Tiancheng Electrochemical Company and Tiancheng Electrochemical Company should therefore not bear the guarantee liability for the loans in this case was contrary to the doctrine “whoever asserts shall bear the burden of proof” for the allocation of burden of proof. The burden of proof on whether the guarantor had known the facts of repaying old loans with new ones and whether the guarantors of the old loans and the new loans were the same should rest on Tiancheng Electrochemical Company according to law. Tiancheng Electrochemical Company, as the guarantor, failed to adduce evidence to prove the aforesaid facts, so it should assume the joint and several liability for repaying the alleged loans in this case. Sanmenxia Station Branch of ICBC requested the court of the second instance to change the original judgment and rule that: Tianyuan Joint-stock Company should assume the joint and several liability for repaying the loan principal of 37.7 million yuan and interest thereon owed by Tianyuan Group Company; Tiancheng Electrochemical Company as the guarantor should assume the joint and several liability for repaying the aforesaid loan principal and interest.
 
在本院二审过程中三门峡车站工行提出：鉴于天成电化公司已于2008年1月 22日被河南省陕县人民法院裁定破产终结，申请撤回对天成电化公司的上诉请求。
During the trial of second instance by this Court, Sanmenxia Station Branch of ICBC requested withdrawal of its appeal claims against Tiancheng Electrochemical Company, since Tiancheng Electrochemical Company was terminated for bankruptcy as ruled by the People’s Court of Shan County of Henan Province on January 22, 2008.
 
被上诉人天元股份公司答辩称：一、 2000年7月，天元集团公司系与其他五家法人共同发起设立天元股份公司。天元集团公司以其经评估价值为3亿余元的资产作为股权投入天元股份公司。为了通过上市公司资格认证，天元集团公司于2000年 9月21日向三门峡车站工行出具《承诺书》，提出其投入天元股份公司的设备资产只对该行的2550万元债务承担责任，其余的债务仍由天元集团公司承担，三门峡车站工行对此予以认可。天元集团公司和天元股份公司及三门峡车站工行签署了5份涉及金额为2550万元的《债务转移协议》。 2000年11月16日天元股份公司的《债务转移协议补充承诺》是基于天元股份公司接收天元集团公司股权财产的不可分割性，而对其中2550万元有抵押的三门峡车站工行的债务出具的承诺，并不构成对三门峡车站工行2000年11月以后与天元集团公司之间其他借款承担责任的承诺。天元股份公司不应对本案所涉及的2004年 8月天元集团公司与三门峡车站工行及担保人天成电化公司间的借款承担民事责任。天元股份公司为了履行上述《债务转移协议补充承诺》，于2001年9月14日与三门峡车站工行签订了借款用途为“为支持企业上市，转移贷款”，借款金额为2550万元的三份《借款合同》。该2550万元借款分别于2001年9月25日、26日全部偿还，该事实证明《债权转移协议补充承诺》已实际履行，双方间的权利义务关系已解除。二、本案所涉及的三笔贷款是2004年8月天元集团公司因生产购买原材料与三门峡车站工行及担保人天成电化公司之间发生的新的借贷法律关系，天元股份公司不是该借贷法律关系的当事人，没有法律上的直接关系，不存在与天元集团公司承担共同偿还责任的事实和法律依据。原审判决认定事实和适用法律正确，请求二审法院予以维持。
The appellee, Tianyuan Joint-stock Company, contended that: (1) In July 2000, Tianyuan Joint-stock Company was formed by Tianyuan Group Company jointly with other five legal persons. Tianyuan Group Company invested its assets at the assessed value of more than 300 million yuan for equities in Tianyuan Joint-stock Company. For passing the certification of qualifications for a listed company, Tianyuan Group Company issued a Letter of Commitment to Sanmenxia Station Branch of ICBC on September 21, 2000, stating that the equipment and assets invested by it in Tianyuan Joint-stock Company should be used only for its liability for the debt of 25.5 million yuan to Sanmenxia Station Branch of ICBC and other debts should still be assumed by Tianyuan Group Company, which was recognized by Sanmenxia Station Branch of ICBC. Tianyuan Group Company, Tianyuan Joint-stock Company and Sanmenxia Station Branch of ICBC entered into five Debt Transfer Agreements involving an amount of 25.5 million yuan. The Supplementary Letter of Commitment to Debt Transfer Agreements issued by Tianyuan Joint-stock Company on November 16, 2000 was a specific commitment for the secured debt of 25.5 million yuan to Sanmenxia Station Branch of ICBC on the basis of the indivisibility of the assets for equities received by Tianyuan Joint-stock Company from Tianyuan Group Company, and did not constitute a commitment to assuming liabilities for other loans between Sanmenxia Station Branch of ICBC and Tianyuan Group Company made after November 2000. Tianyuan Joint-stock Company should not assume the civil liability for the alleged loans made in August 2004 in this case among Tianyuan Group Company, Sanmenxia Station Branch of ICBC and the guarantor, Tiancheng Electrochemical Company. To perform the aforesaid Supplementary Letter of Commitment to Debt Transfer Agreements, Tianyuan Joint-stock Company concluded three Loan Contracts with Sanmenxia Station Branch of ICBC on September 14, 2001 for the purpose of “supporting the listing of the enterprise and transferring loans” in the amount of 25.5 million yuan. These loans of 25.5 million yuan were fully repaid on September 25 and 26, 2001, which proved that the Supplementary Letter of Commitment to Debt Transfer Agreements had been actually performed, and the rights and obligations between two parties had been rescinded. (2) The alleged three loans in this case were new legal relationships of lending which occurred among Tianyuan Group Company, Sanmenxia Station Branch of ICBC and the guarantor, Tiancheng Electrochemical Company, in August 2004 for purchasing raw materials for production. Tianyuan Joint-stock Company was not a party to this legal relationship of lending, had no direct legal relationship with the loans, so there was no factual and legal basis for Tianyuan Joint-stock Company to assume the repayment liability jointly with Tianyuan Group Company. The original judgment was correct in the fact finding and application of law. Therefore, it requested the court of the second instance to uphold the original judgment.
 
原审被告天元集团公司经本院合法传唤，未到本院参与二审诉讼。
The defendant in the original instance, Tianyuan Group Company, failed to participate in the second instance proceedings after being legally summoned by this court.
 
本院二审除确认原审查明的事实外，另查明：
In the trial of the second instance, this Court, in addition to confirming the facts found in the original instance, found that:
 
天元股份公司系在河南省注册，在香港特别行政区创业板上市的股份有限公司。
Tianyuan Joint-stock Company was a joint stock limited company which was registered in Henan Province and listed on the Growth Enterprise Market of the Hong Kong Special Administrative Region.
 
2000年9月21日天元集团公司向三门峡车站工行出具盖有该公司公章并由该公司董事长李永正签字的《承诺书》称：“为争取企业上市，谋求更大发展，于2000年7月改制，经河南省体改委批准发起成立了天元股份公司，天元集团公司以现有优质资产(电解一分厂、电解二分厂、动力车间等辅助车间)作为股份投入，投资总额占股份公司总股本的95．84％。同时，为了通过上市公司资格认证，确定将股份公司应承担的大部分负债留在集团公司，股份公司只承担银行债务8232万元(其中有贵行 2550万元)，贵行原贷给我集团公司的 13 420万元中所剩余的10 870万元债务仍由集团公司承担。为确保贵行的10 870万元信贷资产不因我公司改制而遭受损失，并使该贷款正常还本付息，我集团郑重承诺，对此10 870万元债务，我集团公司以十万吨一期电解铝扩建工程(3．1万吨)竣工后总资产作为偿还贵行债务保证，若该资产以后需要进入股份公司，贵行债权将随同该资产同步转移”。三门峡车站工行对该承诺书的真实性无异议，但称其从未接受该承诺，不同意天元股份公司只承担天元集团公司13 420万元债务中的2550万元的请求。
The Letter of Commitment issued by Tianyuan Group Company to Sanmenxia Station Branch of ICBC on September 21, 2000 and bearing the official seal of the company and the signature of Li Yongzheng, chairman of the board of directors of this company, stated that: “In order for the listing on the stock market and greater development of the enterprise, Tianyuan Group Company was restructured in July 2000, and Tianyuan Joint-stock Company was formed upon the approval of the Commission for the Systematic Reform of Henan Province. Tianyuan Group Company invested its existing good assets (the first branch of electrolysis factory, the second branch of electrolysis factory, power workshop and other auxiliary workshops) for shares, and its total investment accounted for 95.84% of the total capital stock of the joint-stock company. At the same time, to pass the accreditation of a listed company, this company decided to leave most debts that the joint-stock company should assume to the group company, the joint-stock company should only assume 82.32 million yuan of bank debts (including 25.5 million yuan to your bank), and the remaining debt of 108.7 million yuan of the 134.20 million yuan loans granted by your bank to this group company should still be assumed by the group company. To prevent the 108.7 million yuan of credit assets of your bank from suffering any losses from the restructuring of this company and ensure the normal repayment of the loan principal and interest, this Group makes a solemn commitment to provide the total assets after the completion of the first phase of 100,000-ton electrolytic aluminum expansion project (31,000 tons) as a guarantee for the repayment of the debt of 108.7 million yuan to your bank. If these assets need to enter the joint-stock company later, the creditor’s rights of your bank shall be transferred simultaneously along with these assets.” Sanmenxia Station Branch of ICBC raised no objection to the authenticity of this letter of commitment, but asserted that it had never accepted such commitment, and did not agree to the request that Tianyuan Joint-stock Company should only assume 25.5 million yuan of the debt of 134.2 million yuan of Tianyuan Group Company.
 
天元集团公司和天元股份公司签署5份涉及上述三门峡车站工行2550万元贷款的《债务转移协议》。在该五份协议的“银行信贷部门签章”处，三门峡车站工行未加盖公章。
Tianyuan Group Company and Tianyuan Joint-stock Company concluded five Debt Transfer Agreements involving the aforesaid loans of 25.5 million yuan of Sanmenxia Station Branch of ICBC. On the places of “seal of bank credit department” of these five agreements, Sanmenxia Station Branch of ICBC did not affix its official seal.
 
2000年11月16日，天元集团公司和天元股份公司向三门峡车站工行出具《债务转移协议补充承诺》。该补充承诺第一条称：三门峡车站工行与天元集团公司、天元股份公司三方所签的债务转移001、002、 003、004、005号协议仅是为了支持企业上市，不作为债务转移的实质依据，与车站工行的债权无关，集团公司与股份公司共同对车站工行的债权负责；第三条称：如十万吨电解铝工程竣工后资产需进入股份公司，车站工行债权随同该资产同步转移。
On November 16, 2000, Tianyuan Group Company and Tianyuan Joint-stock Company issued a Supplementary Letter of Commitment to Debt Transfer Agreements to Sanmenxia Station Branch of ICBC. Article 1 of this supplementary letter of commitment stated that: The debt transfer agreements, No.001, 002, 003, 004 and 005, were concluded by Sanmenxia Station Branch of ICBC, Tianyuan Group Company and Tianyuan Joint-stock Company only for supporting the listing of the enterprise, should not be taken as the substantive basis for debt transfer, and had nothing to do with the creditor’s rights of Sanmenxia Station Branch of ICBC, and Tianyuan Group Company and Tianyuan Joint-stock Company should be jointly liable for the creditor’s rights of Sanmenxia Station Branch of ICBC. Article 3 of it stated that: if the assets after the completion of the 100,000-ton electrolytic aluminum project needed to enter the joint-stock company, the creditor’s rights of Sanmenxia Station Branch of ICBC should be transferred simultaneously along with such assets.
 
根据天元股份公司2005年10月27日在香港联交所发布的《非常重大收购及关联交易公告》，天元集团公司自2004年 6月13日起租赁天元股份公司的3．1万吨电解铝设备。双方于公告日签订协议，天元股份公司以承担天元集团公司所欠金融机构(不包括车站工行)债务、应收账款、采购定金及现金支付等方式，以3．9078亿元为对价收购天元集团公司3．1万吨电解铝生产线及辅助设施及天元集团公司的部分土地使用权。其中3．1万吨电解铝生产线及辅助设施作价3．1496亿元。
According to the Announcement on Very Substantial Acquisitions and Connected Transactions released by Tianyuan Joint-stock Company in Hong Kong Stock Exchange on October 27, 2005, Tianyuan Group Company had leased 31,000-ton electrolytic aluminum equipment to Tianyuan Joint-stock Company from June 13, 2004. On the date of announcement, both parties concluded an agreement stipulating that Tianyuan Joint-stock Company should purchase the production line of 31,000-ton electrolytic aluminum and auxiliary facilities as well as some land use rights of Tianyuan Group Company at a price of 390.78 million yuan through assuming debts owed by Tianyuan Group Company to financial institutions (excluding Sanmenxia Station Branch of ICBC), account receivables, purchase deposits and cash payments. In particular, the production line of 31,000-ton electrolytic aluminum and auxiliary facilities were priced at 314. 96 million yuan.
 
天元集团公司已将持有的天元股份公司全部股权(占天元股份公司总股本的 67．2％)转让给案外人天瑞公司。
Tianyuan Group Company had transferred all the equities (accounting for 67.2% of total capital stock of Tianyuan Joint-stock Company) held by it in Tianyuan Joint-stock Company to a non-party to this case, Tianrui Company.
 
2007年5月25日，河南省陕县人民法院裁定天成电化公司破产还债。2008年 1月22日该院裁定：宣告终结该破产案件，未得到清偿的债权不再清偿。根据该案破产管理人的破产资产分配方案，该案普通破产债权人的受偿比例为零。
On May 25, 2007, the People’s Court of Shan County of Henan Province declared Tiancheng Electrochemical Company bankrupt for repayment of debts. On January 22, 2008, the court ruled that: the close of this bankruptcy case should be declared, and the unsettled creditor’s rights would not be settled any more. Under the bankruptcy asset allocation scheme of the bankruptcy administrator of this case, the repayment ratio for the ordinary creditors in this bankruptcy case was zero.
 
本院认为：天元集团公司未依约偿还三门峡车站工行贷款3770万元本金及利息，构成违约。本案各方当事人对该项事实均无异议，故原审判决关于天元集团公司的民事责任部分本院予以维持。本案二审的焦点问题是：天元股份公司是否应对天元集团公司的本案欠款承担共同偿还责任。
In the opinion of this Court, Tianyuan Group Company failed to repay loan principal of 37.7 million yuan and interest thereon to Sanmenxia Station Branch of ICBC as agreed on, which constituted a breach of contract. All the parties to this case have no objection to this fact, so this Court upholds the original judgment in respect of the civil liabilities of Tianyuan Group Company. The focus of the trial of the second instance of this case is: whether Tianyuan Joint-stock Company should assume the liability for repaying the debt in this case jointly with Tianyuan Group Company.
 
(一)《中华人民共和国合同法》第八十四条规定：“债务人将合同的义务全部或者部分转移给第三人的，应当经债权人同意。”天元集团公司以其优良资产与他人组建天元股份公司，将净值9232．6万元的资产投入到天元股份公司，导致其偿还银行债务的责任财产减少，清偿债务的能力削弱。在股份制改造过程中，天元集团公司向三门峡车站工行出具《承诺书》，提出其投入天元股份公司的设备资产只对该行共计 13 420万元债务中的2550万元债务承担责任，其余的债务仍由天元集团公司承担。对此承诺，三门峡车站工行未予接受，也未在天元集团公司和天元股份公司签署的5份涉及三门峡车站工行2550万元贷款的《债务转移协议》上加盖公章，故该债务转移协议对三门峡车站工行未发生法律效力。
(1) Article 84 of the Contract Law of the People’s Republic of China provides that: “Where a debtor transfers all or any of its obligations under a contract to a third party, such a transfer shall be subject to the consent of the creditor.” Tianyuan Group Company established Tianyuan Joint-stock Company jointly with others with its good assets, and invested assets with a net value of 92.326 million yuan in Tianyuan Joint-stock Company, causing the reduction of its property with which it assumed the liability for repayment of bank debts and the weakening of its solvency. During the process of shareholding transformation, Tianyuan Group Company issued a Letter of Commitment to Sanmenxia Station Branch of ICBC, proposing that the equipment assets that it invested in Tianyuan Joint-stock Company should only correspond to its liabilities for 25.5 million yuan of 134.2 million yuan of its debts to the bank, and the remaining debts should be still assumed by Tianyuan Group Company. Because Sanmenxia Station Branch of ICBC neither accepted this commitment nor affixed its official seal to the five Debt Transfer Agreements concluded by Tianyuan Group Company and Tianyuan Joint-stock Company involving 25.5 million yuan of loans made by Sanmenxia Station Branch of ICBC, such debt transfer agreements had no legal effect on Sanmenxia Station Branch of ICBC.
 
(二)天元集团公司和天元股份公司于 2000年11月16日签署的《债务转移协议补充承诺》实际上向三门峡车站工行承诺了以下三项内容：其一为前述天元集团公司、天元股份公司所签订的债务转移协议仅是为了企业上市需要所作，不是债务转移的实质依据，即双方已否定了五份债务转移协议的法律效力，并承诺天元集团公司与天元股份公司共同对车站工行的债权负责；其二，天元集团公司以十万吨电解铝扩建工程竣工后总资产作为偿还三门峡车站工行债务的保证，如果天元集团公司无力归还三门峡车站工行的债务，该债务由天元股份公司归还；其三，如十万吨电解铝工程竣工后资产需进入股份公司，车站工行债权随同该资产同步转移。该承诺意思表示明确，第一条为并存的债务承担，即债的加入，天元集团公司不脱离原来的债务关系，天元股份公司加入到天元集团公司对三门峡车站工行的债务当中，承诺与天元集团公司共同承担还款责任。第二条为债的保证，即天元集团公司以十万吨电解铝的资产作为还款保证，在其不能偿还债务的情况下，天元股份公司承担保证责任。第三条实际为附条件的免责债务承担，即以十万吨电解铝的资产进入天元股份公司为条件，当该条件成就时，天元集团公司脱离原来的债务关系，天元股份公司直接向三门峡车站工行承担还款责任。三门峡车站工行认可《债务转移协议补充承诺》，根据十万吨电解铝的资产其中6．9万吨资产在天元股份公司成立时即进入该公司，另 3．1万吨资产自2004年6月13日起由天元股份公司租赁，并于2005年10月27日以承担天元集团公司债务和支付部分现金等方式收购的事实，认为《债务转移协议补充承诺》所附条件已经成就，要求天元股份公司承担天元集团公司本案债务的还款责任的上诉请求，本院予以支持。同时，天元集团公司的还款责任本可以免除，但由于其未对此提起上诉，加之《债务转移协议补充承诺》第一条的承诺，故天元股份公司与天元集团公司应对本案3770万元本息承担共同偿还责任。
(2) The Supplementary Letter of Commitment to Debt Transfer Agreements concluded by Tianyuan Group Company and Tianyuan Joint-stock Company on November 16, 2000 actually contained commitments to Sanmenxia Station Branch of ICBC in the following three aspects: firstly, the aforesaid debt transfer agreements were concluded by Tianyuan Group Company and Tianyuan Joint-stock Company only for the listing of the enterprise, and were not the substantive basis for debt transfer, that is, both parties had denied the legal effect of these five debt transfer agreements, and made a commitment that Tianyuan Group Company and Tianyuan Joint-stock Company should be jointly liable for the creditor’s rights of Sanmenxia Station Branch of ICBC. Secondly, Tianyuan Group Company provided the total assets after the completion of the 100,000-ton electrolytic aluminum expansion project as a guarantee for repaying the debts to Sanmenxia Station Branch of ICBC. If Tianyuan Group Company was unable to repay the debts to Sanmenxia Station Branch of ICBC, Tianyuan Joint-stock Company should repay such debts. Thirdly, if the assets after the completion of the 100,000-ton electrolytic aluminum project needed to enter the joint-stock company, the creditor’s rights of Sanmenxia Station Branch of ICBC should be transferred simultaneously along with these assets. These commitments were clearly defined. The first aspect refers to a coexisting debt assumption, i.e., joining in debt repayment, Tianyuan Group Company did not get away from the original debt relationship, and Tianyuan Joint-stock Company joined the repayment of debts owed by Tianyuan Group Company to Sanmenxia Station Branch of ICBC by promising to assume the liability of repaying debts jointly with Tianyuan Group Company. The second aspect refers to a guarantee for debts, i.e., Tianyuan Group Company provided the assets of 100,000-ton electrolytic aluminum as a guarantee for repayment, and if it was unable to repay the debts, Tianyuan Joint-stock Company should assume the guarantee liability. The third aspect actually refers to a conditional exemption of liability for debt assumption, i.e., the entry of assets of 100,000-tons electrolytic aluminum into Tianyuan Joint-stock Company is a condition, and when this condition is met, Tianyuan Group Company should separate itself from the original debt relationship, and Tianyuan Joint-stock Company should directly assume the liability for debt repayment to Sanmenxia Station Branch of ICBC. Sanmenxia Station Branch of ICBC accepted the Supplementary Letter of Commitment to Debt Transfer Agreements, and according to the facts that the 69,000-ton assets of the 100,000-ton electrolytic aluminum assets entered Tianyuan Joint-stock Company when it was formed and the remaining 31,000-ton assets had been leased by Tianyuan Joint-stock Company from June 13, 2004 and were purchased by it on October 27, 2005 through assuming debts of Tianyuan Group Company, cash payment, etc., considered that the condition attached to the Supplementary Letter of Commitment to Debt Transfer Agreements had been met, and requested Tianyuan Joint-stock Company to assume the liability for repaying the debts of Tianyuan Group Company in this case. This appellate claim of Sanmenxia Station Branch of ICBC should be sustained by this Court. The liability for debt repayment of Tianyuan Group Company should have been exempted, but since it failed to appeal in this regard, in view of the commitment in Article 1 of the Supplementary Letter of Commitment to Debt Transfer Agreements, Tianyuan Joint-stock Company and Tianyuan Group Company should jointly assume the liabilities for repaying loan principal of 37.7 million yuan and interest thereon in this case.
 
(三)关于天元股份公司提出的本案所涉及的三笔贷款是2004年8月天元集团公司因生产购买原材料与三门峡车站工行及担保人天成电化公司之间发生的新的借贷法律关系，天元股份公司不是该借贷法律关系的当事人，不应承担民事责任问题。本院认为，根据本案查明的事实，从本案合同约定的贷款目的及贷款、还款的操作方式，可以认定：本案车站工行所诉天元集团公司的三笔贷款即(2004)第37号、38号、 39号借款合同均系借新还旧借款合同。 (2004)第37号1590万元借款合同是经数次借新还旧后对双方2000年之前1700万元借款的借新还旧，而(2004)第38号 1480万元借款合同、第39号700万元借款合同系经数次借新还旧后对双方2000年之前1647万元借款合同的借新还旧。原审判决认定本案贷款是2000年的旧贷款经多次以贷还贷逐步演化而来是正确的。借新还旧系贷款到期不能按时收回，金融机构又向原贷款人发放贷款用于归还原贷款的行为。借新还旧与贷款人用自有资金归还贷款，从而消灭原债权债务的行为有着本质的区别。虽然新贷代替了旧贷，但贷款人与借款人之间的债权债务关系并未消除，客观上只是以新贷的形式延长了旧贷的还款期限，故借新还旧的贷款本质上是旧贷的一种特殊形式的展期。本案天元集团公司的相关旧贷实际并未得到清偿，天元股份公司对天元集团公司的上述三笔贷款仍应依其承诺，承担民事责任。
(3) Tianyuan Joint-stock Company argued that the alleged three loans in this case were new legal relationships of lending which occurred among Tianyuan Group Company, Sanmenxia Station Branch of ICBC and the guarantor, Tiancheng Electrochemical Company, in August 2004 for purchasing raw materials for production, and Tianyuan Joint-stock Company was not a party to any of these legal relationships of lending and should not assume civil liability. This Court considers that, based on the facts found in this case, it may be determined from the loan purpose as stipulated in the contracts in this case and the operational manners of loans and repayment that: the three loans in this case for which Sanmenxia Station Branch of ICBC sued Tianyuan Group Company, loan contracts No. 37, No. 38 and No. 39 [2004], were all loan contracts concluded for repaying old loans with new ones. The loan contract No. 37 [2004] of 15.9 million yuan was a contract for repaying old loans of 17 million yuan before 2000 between both parties with a new loan after several times of repayment of old loans with new ones, and the loan contract No. 38 [2004] of 14.8 million yuan and the loan contract No. 39 of 7 million yuan were contracts for repaying old loans of 16.47 million yuan before 2000 between both parties with new loans after several times of repayment of old loans with new ones. The conclusion in the original judgment that the alleged loans in this case were loans gradually evolving from old loans in 2000 after several times of repayment of old loans with new ones was correct. Repayment of old loans with new ones means that a financial institution grants a loan again to the original borrower for repaying former mature loans which cannot be recovered on time. Repayment of old loans with new ones is essentially different from the repayment of loans by the borrower with its own funds which causes the extinguishment of the original rights and debts. Although a new loan replaces the old ones, the rights and obligations between the lender and the borrower are not eliminated, and objectively, it merely causes the extension of the repayment period of old loans in the form of a new loan. Therefore, a loan made for the repayment of old loans with a new one is essentially a special form of extension of the old loans. The relevant old loans to Tianyuan Group Company in this case were not actually repaid, and Tianyuan Joint-stock Company should assume the civil liability for the aforesaid three loans to Tianyuan Group Company according to its commitment.
 
(四)天元股份公司在本院二审中提出，本案《债务转移协议补充承诺》是对天元股份公司同意接收的天元集团公司 2550万元债务对三门峡车站工行出具的承诺，并不构成对三门峡车站工行与天元集团公司之间其他借款承担责任的承诺。为了履行上述《债务转移协议补充承诺》，天元股份公司于2001年9月14日与三门峡车站工行签订了转移贷款2550万元的三份借款合同，且该2550万元借款已全部偿还。《债权转移协议补充承诺》因已实际履行，双方间的权利义务关系已解除。对此，本院认为，《债权转移协议补充承诺》并未明确约定天元股份公司只对天元集团公司的2550万元债务对三门峡车站工行承担民事责任。天元股份公司在二审中向本院提交了三份还款凭证，证明2000年9月 25日、2000年9月26日、2000年9月26日以转移贷款名义，代天元集团公司向三门峡车站工行还款2550万元。对此，三门峡车站工行未予否认，双方均认可该还款并非本案欠款的还款，故本院对此事实予以确认。但三笔还款均发生于2000年11月16日天元股份公司向三门峡车站工行出具《债权转移协议补充承诺》之前，难以据此得出该项还款是为履行上述补充承诺的结论。故天元股份公司关于三门峡车站工行实际上默认了天元股份公司只承担天元集团公司2550万元债务的请求，该协议因履行得以解除的主张，本院不予支持。
(4) In the trial of the second instance by this Court, Tianyuan Joint-stock Company argued that the Supplementary Letter of Commitment to Debt Transfer Agreements was a commitment to Sanmenxia Station Branch of ICBC that it agreed to accept the 25.5 million yuan of debt of Tianyuan Group Company, and did not constitute a commitment to assuming the liabilities for other loans between Sanmenxia Station Branch of ICBC and Tianyuan Group Company. For performing the aforesaid Supplementary Letter of Commitment to Debt Transfer Agreements, Tianyuan Joint-stock Company concluded three loan contracts on transferring the loans of 25.5 million yuan with Sanmenxia Station Branch of ICBC on September 14, 2001, and such loans of 25.5 million yuan had been repaid in full. The Supplementary Letter of Commitment to Debt Transfer Agreements had been actually fulfilled, so the rights and obligations between both parties were eliminated. This Court considers that the Supplementary Letter of Commitment to Debt Transfer Agreements did not clearly stipulate that Tianyuan Joint-stock Company should only assume the civil liability for 25.5 million yuan of debt of Tianyuan Group Company to Sanmenxia Station Branch of ICBC. In the trial of the second instance, Tianyuan Joint-stock Company submitted three repayment vouchers to this Court to prove that it repaid 25.5 million yuan to Sanmenxia Station Branch of ICBC on behalf of Tianyuan Group Company on September 25, 2000, September 26, 2000 and September 26, 2000 in the name of transferred loans. Sanmenxia Station Branch of ICBC did not deny it, and both parties agreed that such repayments were not the repayment of the alleged debt in this case. So, this court confirmed such a fact. However, since all of the three repayments occurred before November 16, 2000 when Tianyuan Joint-stock Company issued the Supplementary Letter of Commitment to Debt Transfer Agreements to Sanmenxia Station Branch of ICBC, it is difficult to draw a conclusion that these repayments were made to perform the aforesaid supplementary letter of commitment. So, this Court should reject the claim of Tianyuan Joint-stock Company that Sanmenxia Station Branch of ICBC tacitly approved in fact the request of Tianyuan Joint-stock Company for assuming only 25.5 million yuan of the debt of Tianyuan Group Company and the agreements should be rescinded as a result of performance.
 
(五)关于天成电化公司的主体资格和民事责任问题。鉴于在本院二审审理前，天成电化公司已于2008年1月22日被河南省陕县人民法院裁定破产终结，其民事主体资格因破产程序终结归于消灭，天成电化公司不能再作为本案的当事人。
(5) As to the issues of the entity status and civil liability of Tiancheng Electrochemical Company. Before the trial of the second instance by this Court, Tiancheng Electrochemical Company was terminated after completing the bankruptcy procedures as ruled by the People’s Court of Shan County of Henan Province on January 22, 2008, and its civil entity status was extinguished upon the end of the bankruptcy procedures. Therefore, it shall no longer be regarded as a party to this case.
 
综上，原审判决部分事实认定不清、责任判处不当。本院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(三)项之规定，判决如下：
In conclusion, the original judgment was unclear in the finding of some facts and improper in the determination of liabilities. In accordance with paragraph 1 (3) of Article 153 of the Civil Procedure Law of the People’s Republic of China, this Court rules as follows:
 
一、维持河南省高级人民法院(2006)豫法民二初字第44号民事判决第二项；
1. Item (2) of the civil judgment (No. 44 [2006], First Instance, Civil Division II, Higher People’s Court of Henan Province) shall be sustained;
 
二、变更上述民事判决主文第一项为：三门峡天元铝业集团有限公司、三门峡天元铝业股份有限公司于本判决生效后十日内向中国工商银行股份有限公司三门峡车站支行偿还借款本金3770万元及利息 3 754 860．16元(计算至2006年7月20日，自2006年7月21日起，按照中国人民银行规定的同期逾期贷款利率分段计付至付清之日止)。上述给付义务人如未按照本判决确定的期间履行给付义务，应当依照《中华人民共和国民事诉讼法》第二百三十二条的规定，加倍支付迟延履行期间的债务利息。
2. Item (1) of the main content of the aforesaid civil judgment shall be changed into: Sanmenxia Tianyuan Aluminum Industry Group Co., Ltd. and Sanmenxia Tianyuan Aluminum Company Limited shall repay 37.7 million yuan of loan principal and 3,754,860.16 yuan of interest (which shall be calculated until July 20, 2006, and the interest from July 21, 2006 shall be calculated by segment at the overdue loan rate over the same period as prescribed by the People’s Bank of China until the date of full repayment) to Sanmenxia Station Branch of the Industrial and Commercial Bank of China Ltd. within ten days after this judgment comes into force. If the aforesaid payers fail to perform the payment obligation within the period as determined in this judgment, they shall, in accordance with Article 232 of the Civil Procedure Law of the People’s Republic of China, pay double debt interest for the period of delay in performance.
 
本案一审案件受理费217 284．3元，由三门峡天元铝业集团有限公司、三门峡天元铝业股份有限公司共同承担；二审案件受理费217 284．3元，由三门峡天元铝业集团有限公司、三门峡天元铝业股份有限公司共同承担。
The acceptance fee of 217,284.3 yuan for the trial of the first instance of this case shall be jointly paid by Sanmenxia Tianyuan Aluminum Industry Group Co., Ltd. and Sanmenxia Tianyuan Aluminum Company Limited; the acceptance fee of 217,284.3 yuan for the trial of the second instance of this case shall be jointly paid by Sanmenxia Tianyuan Aluminum Industry Group Co., Ltd. and Sanmenxia Tianyuan Aluminum Company Limited.
 
　　本判决为终审判决。This judgment shall be final.
 
审 判 长 张树明Chief Judge Zhang Shuming
 
代理审判员 王华菊Acting Judge Wang Huaju
 
代理审判员 沙 玲Acting Judge Sha Ling
 
二00八年九月三日September 3, 2008