案件基本事实

2011年11月被告某银行与某担保人签订了《最高额保证合同》，合同约定从2011年11月起一年内在1500万元的最高余额内，某担保人为浙江金港船业股份有限公司（下称金港公司）与被告某银行签订借款、承兑汇票等协议提供担保。后金港公司与被告于2012年1月至3月签订了三份《银行承兑汇票承兑合同》，合同签订后金港公司按票面金额的50%作为履约保证金汇入被告指定保证金帐户，被告也向金港公司开具相应的承兑汇票。2012年4月被告与金港公司补充签订《抵押合同》，约定金港公司将其所有的某在建船舶项目分段抵押给被告，作为追加抵押担保，同时办理了动产抵押登记手续。承兑汇票到期后，金港公司未付票款，被告扣除金港公司的保证金本息后代付票款。2012年6月底法院受理了金港公司的破产申请，后指定浙江利群律师事务所担任金港公司管理人（原告）。管理人在履行职责过程中发现本案所涉《抵押合同》违反《破产法》第三十一条之规定，管理人有权申请人民法院予以撤销。2013年10月管理人向法院起诉请求撤销《抵押合同》。

一审认定与判决

原告认为：一、金港公司与被告之间的债权债务自双方签订《银行承兑汇票承兑合同》产生。根据《银行承兑汇票承兑合同》约定“申请人于汇票到期日前二天无条件将应付票据足额交存承兑人。从汇票到期前一天，申请人同意承兑人从申请人的存款帐户中直接划付票款。”可见，被告出具承兑汇票后，金港公司负有在汇票到期日前二天无条件将应付票据足额交存被告的合同约定义务，如金港公司不履行以上义务的，被告应当按照该合同约定向持票人支付票款，并按所垫付票款转作逾期贷款。这说明了金港公司与被告之间的债权债务在合同签订时就已产生。二、本案所涉《抵押合同》属于破产申请前一年内对没有财产担保的债务提供财产担保的行为，管理人有权请求人民法院予以撤销。

被告认为：一、金港公司向被告申请开具的承兑汇票虽已提供自然人担保，但被告在该债务尚未形成时发现金港公司提供担保人出现保证能力瑕疵，为此要求金港公司提供抵押担保，此行为并无不当。二、金港公司在办理抵押时，不存在故意或过失行为，在担保人出现保证能力瑕疵时，被告要求金港公司提供财产担保是当时一种替补保证方式。三、在办理财产抵押手续时，双方的债权债务尚未形成。

一审判决及理由

一审法院认为本案的关键是金港公司与被告设定抵押权以前存在债权债务关系，还是在设定抵押权后存在债权债务关系，也即金港公司与被告存在债权债务的节点是以金港公司出票日期或者双方订立银行承兑汇票承兑合同日期还是以被告垫付承兑汇票票款的日期。按照票据法的有关规定，在出票日，金港公司与被告存在委托付款的委托关系，并根据承兑合同的约定，被告只有在垫付票款之日起，才享有处置金港公司抵押物，并要求金港公司清偿垫付款及支付利息的权利，故金港公司与被告在设定抵押前并不存在债权债务关系，由此一审法院驳回了原告的诉讼请求。

上诉人上诉请求与答辩

原告不服一审判决，上诉称：一、本案在出票日金港公司与被告签订了《银行承兑汇票承兑合同》，双方建立的了票据法律关系，受《票据法》调整，而不是仅仅受《合同法》调整的委托付款关系。另外根据《合同法》的规定，委托人或者受托人可以随时解除委托合同，而本案金港公司与被告建立的票据法律关系不得随时解除。二、《票据法》对出票人与付款人签订承兑合同并建立票据法律关系后的债权债务有明确的法律规定。三、《银行承兑汇票承兑合同》对双方债权债务约定明确，并符合票据法的相关规定。四、被告从垫付票款之日起，享有对金港公司等提出主张的权利，这不是债权债务产生的时间，而是被告主张违约责任的开始。由此，原告要求二审法院撤销原判，改判撤销《抵押合同》。

被告答辩称：一、原审证据充分说明了在设定抵押权后产生债权债务关系。二、根据《票据法》规定，被告只是接受金港公司托付票据金额的人，并非在汇票出票之日起存在的债权人。三、根据承兑合同约定，只有在汇票到期付款日而金港公司没有履行付款义务，并在被告垫付票款之日起，被告才享有要求金港公司清偿垫付款本息的权利。由此被告要求二审法院驳回原告的上诉请求。

二审认定与处理：二审法院认为双方的争议的是金港公司与被告之间的债权债务自双方签订《银行承兑汇票承兑合同》或者被告开具银行承兑汇票之时，还是被告垫付银行承兑汇票票款日起产生。金港公司与被告签订《银行承兑汇票承兑合同》，并向金港公司开具了银行承兑汇票，金港公司取得并持有银行承兑汇票后，即享有了票据的权利，可以将银行承兑汇票权利转让给他人或者将银行承兑汇票权利授予他人行使，故金港公司与被告之间的债权债务关系自被告开具承兑汇票之时即产生。由此撤销一审判决，改判撤销《抵押合同》。

对本案的解析

根据破产法第三十一条第三项的规定，破产申请前一年内对没有财产担保的债务提供财产担保的行为，管理人有权请求人民法院予以撤销。故本案的争议焦点是：金港公司与被告之间的债权债务自双方签订《银行承兑汇票承兑合同》或者被告开具银行承兑汇票之时，还是被告垫付银行承兑汇票票款日起产生。笔者认为，金港公司与被告之间的债权债务自双方签订《银行承兑汇票承兑合同》时产生，理由如下：

一、根据《票据法》第二十六条的规定，“出票人签发汇票后，即承担保证该汇票承兑和付款的责任…”，故金港公司在签订承兑合同后，其债务主要体现为“保证该汇票承兑和付款”；根据《票据法》第四十四条的规定，“付款人承兑汇票后，应当承担到期付款的责任。”，故被告在签订承兑合同后，其债务主要体现为“到期付款”。可见双方签订承兑合同时，双方的主要权利义务均已明确，金港公司取得并持有银行承兑汇票后，即享有了票据的权利，可以将银行承兑汇票权利转让给他人或者将银行承兑汇票权利授予他人行使，二、《银行承兑汇票承兑合同》对双方债权债务约定明确，并符合票据法的相关规定。故本案二审法院改判一审判决正确。

浙江利群律师事务所  金伟

Basic facts of the case

In November 2011, the defendant's bank signed a "Maximum Guarantee Contract" with a guarantor, which stipulated that within the maximum balance of 15 million yuan within one year from November 2011, a guarantor would provide guarantee for Zhejiang Jingang Shipbuilding Co., Ltd. (hereinafter referred to as Jingang Company) by signing loan and acceptance agreements with the defendant's bank. Houjingang Company and the defendant signed three Banker's acceptance Acceptance Contracts from January to March 2012. After signing the contract, Jingang Company remitted 50% of the face value of the bill as the performance bond to the security account designated by the defendant, and the defendant also issued the corresponding acceptance bill to Jingang Company. In April 2012, the defendant and Jingang Company signed a supplementary "Mortgage Contract", which stipulated that Jingang Company would mortgage all of its ongoing ship projects to the defendant in sections as additional mortgage security, and also completed the registration procedures for chattel mortgage. After the acceptance of the bill of exchange expires, the defendant shall deduct the principal and interest of the deposit from the Golden Harbor Company before paying the bill of exchange. At the end of June 2012, the court accepted the bankruptcy application of Jingang Company and later appointed Zhejiang Liqun Law Firm as the administrator (plaintiff) of Jingang Company. In the process of fulfilling its duties, if the administrator discovers that the mortgage contract involved in this case violates Article 31 of the Bankruptcy Law, the administrator has the right to apply to the people's court for revocation. In October 2013, the administrator filed a lawsuit with the court requesting the revocation of the Mortgage Contract.

First instance determination and judgment

The plaintiff believes that: 1. The creditor's rights and debts between Goldport Company and the defendant arise from the Banker's acceptance Acceptance Contract signed by both parties. According to the Banker's acceptance Acceptance Contract, "the applicant unconditionally deposits the bills payable in full to the acceptor two days before the maturity date of the bill. From the day before the maturity date of the bill, the applicant agrees that the acceptor directly transfers the bill amount from the applicant's deposit account." It can be seen that after the defendant issues the acceptance bill, Golden Harbor has the contractual obligation to unconditionally deposit the bills payable in full to the defendant two days before the maturity date of the bill, If Jin Gang Company fails to fulfill the above obligations, the defendant shall pay the ticket payment to the holder in accordance with the provisions of the contract, and convert the advanced ticket payment into overdue loans. This indicates that the creditor's rights and debts between Jingang Company and the defendant have already arisen at the time of signing the contract. 2、 The mortgage contract involved in this case belongs to the act of providing property guarantee for debts without property guarantee within one year before the bankruptcy application, and the administrator has the right to request the people's court to revoke it.

The defendant believes that: 1. Although the acceptance bill issued by Jingang Company to the defendant has provided a natural person guarantee, the defendant found that Jingang Company had a defect in the guarantee ability of the guarantor before the debt was formed. Therefore, it is not improper to request Jingang Company to provide mortgage guarantee. 2、 When handling the mortgage, Jingang Company did not engage in intentional or negligent behavior. When the guarantor had defects in their guarantee ability, the defendant's request for Jingang Company to provide property guarantee was a substitute guarantee method at that time. 3、 When handling the property mortgage procedures, the creditor's rights and debts of both parties have not yet formed.

First instance judgment and reasons

The court of first instance believed that the key point of this case was whether there was a credit debt relationship between Jingang Company and the defendant before the Hypothec was set, or there was a credit debt relationship after the Hypothec was set, that is, whether the node where Jingang Company and the defendant had a credit debt relationship was the date when Jingang Company issued the bill, or the date when both parties entered into a Banker's acceptance acceptance contract, or the date when the defendant advanced the payment for the acceptance bill. According to the relevant provisions of the Negotiable Instruments Law, on the date of issuance, there is an entrusted payment relationship between Jingang Company and the defendant. According to the acceptance contract, the defendant only has the right to dispose of the collateral of Jingang Company from the date of advance payment and demand Jingang Company to repay the advance payment and pay interest. Therefore, Jingang Company and the defendant do not have a debt relationship before setting the mortgage, As a result, the first instance court rejected the plaintiff's lawsuit request.

Appellant's Appeal Request and Defense

The plaintiff objected to the judgment of first instance and appealed that: First, on the date of issue of the bill, Jingang Company and the defendant signed the Banker's acceptance Acceptance Contract, and the two parties established a legal relationship on the bill, which is regulated by the Bill Law, rather than just the entrusted payment relationship regulated by the Contract Law. In addition, according to the provisions of the Contract Law, the principal or trustee may terminate the commission contract at any time, and the legal relationship between the bill established by Jin Gang Company and the defendant in this case cannot be terminated at any time. 2、 The Negotiable Instruments Law has clear legal provisions on the creditor's rights and debts after the issuer and payer sign an acceptance contract and establish a legal relationship with the bill. 3、 The Banker's acceptance Acceptance Contract clearly stipulates the creditor's rights and debts of both parties, and complies with the relevant provisions of the Bill Law. 4、 The defendant has the right to make a claim against Jin Gang Company and others from the date of advance payment of the ticket, which is not the time when the creditor's rights and debts arise, but the beginning of the defendant's claim for breach of contract liability. Therefore, the plaintiff requests the second instance court to revoke the original judgment and change the judgment to revoke the Mortgage Contract.

The defendant replied that: First, the evidence of the original trial fully explained the creditor's rights and debt relationship after the establishment of Hypothec. 2、 According to the Negotiable Instruments Law, the defendant is only a person who accepts the payment of the bill amount by the Golden Harbor Company, and is not a creditor existing from the date of the bill of exchange. 3、 According to the acceptance contract, the defendant only has the right to demand payment of the principal and interest of the advance payment from Jingang Company from the date when the bill of exchange is due for payment and Jingang Company fails to fulfill the payment obligation, and from the date when the defendant advances the bill of exchange. Therefore, the defendant requests the second instance court to dismiss the plaintiff's appeal request.

Determination and handling of the second instance: the court of second instance held that the dispute between the two parties was whether the creditor's rights and debts between Jingang Company and the defendant arose from the time when both parties signed the Banker's acceptance Acceptance Contract or the defendant issued the Banker's acceptance, or from the date when the defendant advanced the Banker's acceptance. Jingang Company signed the Banker's acceptance Acceptance Contract with the defendant and issued a Banker's acceptance to Jingang Company. After Jingang Company obtained and held the Banker's acceptance, it enjoyed the right to the bill, and could transfer the right to the Banker's acceptance to others or authorize the right to the Banker's acceptance to be exercised by others. Therefore, the creditor's rights and debt relationship between Jingang Company and the defendant arose from the time the defendant issued the acceptance bill. Therefore, the first instance judgment is revoked and the "Mortgage Contract" is revoked.

Analysis of this case

According to Article 31 (3) of the Bankruptcy Law, the administrator has the right to request the people's court to revoke any act of providing property guarantee for debts without property guarantee within one year prior to the bankruptcy application. Therefore, the focus of the dispute in this case is: whether the creditor's rights and debts between Jingang Company and the defendant arise from the date when both parties sign the Banker's acceptance Acceptance Contract or the defendant issues the Banker's acceptance, or from the date when the defendant advances the Banker's acceptance. The author believes that the creditor's rights and debts between Jingang Company and the defendant came into being when both parties signed the Banker's acceptance Acceptance Contract. The reasons are as follows:

1、 According to Article 26 of the Negotiable Instruments Law, "After the drawer issues the bill of exchange, they assume the responsibility of guaranteeing the acceptance and payment of the bill of exchange..." Therefore, after signing the acceptance contract, the main debt of Jingang Company is to "guarantee the acceptance and payment of the bill of exchange"; According to Article 44 of the Negotiable Instruments Law, "After accepting the bill of exchange, the payer shall bear the responsibility for payment at maturity." Therefore, after signing the acceptance contract, the defendant's debt mainly manifests as "payment at maturity. It can be seen that when both parties signed the acceptance contract, the main rights and obligations of both parties have been clearly defined. Jingang Company enjoys the rights of the bill after it obtains and holds the Banker's acceptance, and can transfer the rights of the Banker's acceptance to others or delegate the rights of the Banker's acceptance to others. II. The Banker's acceptance acceptance contract clearly stipulates the creditor's rights and debts of both parties, and complies with the relevant provisions of the Bill Law. Therefore, the second instance court in this case revised the judgment of the first instance to be correct.

Zhejiang Liqun Law Firm Jin Wei