On Margin Guarantee Of Financing Guarantee Company In Loan Business

In recent years,with the rising costs of human resources,raw material prices,land and environmental protection,as well as the impact of the global economic downturn,the development of small and medium-sized enterprises has been faced with great challenges.Smes play an important role in increasing employment,optimizing industrial structure,promoting technological innovation and promoting national economic and social development.However,small and medium-sized enterprises are mostly small and cannot meet the large capital demands at the development stage through their own accumulation.The problem of capital shortage has become a bottleneck restricting the development of enterprises.The narrow financing channel and high financing cost have restricted the development of small and medium-sized enterprises.After the emergence of the financing guarantee company,on the one hand,the financing difficulties and expensive problems were alleviated for small and medium-sized enterprises through the credit enhancement;on the other hand,the credit risk was dispersed for Banks and the management cost was reduced;on the other hand,the company complied with the policy objectives of developing inclusive finance and supporting small and medium-sized enterprises.Silver bear cooperation,financing guarantee companies in loan of bank financing for small and medium enterprises in addition to providing guaranteeguarantee,the other third party to provide guarantee,financing guarantee the company according to the certain proportion to the amount guaranteed in the lending bank deposit account opened in the corresponding share margin as the performance guarantee,when the debtor fails to press about performance of creditors to enjoy the priority of compensation with respect to the corresponding deposit deposit account.Of the deposit is mainly involved in the business of commercial bank credit for the bank acceptance deposit,a bank guarantee deposit,l/c issuing bond,guarantee company guarantee bond,real estate mortgage loan guarantees and other related business and capture to put money in the nature of guaranty,trigger disputes mainly focused on the financing guarantee company deposit guarantee loan business.With the continuous expansion of the financing guarantee business,the financing guarantee company shall deposit the earnest money of the enterprise it guarantees successively into the margin account in accordance with the corresponding proportion.The margin in the account shall flow with the increase and decrease of the main creditor's right to form the "margin pool",and all the funds in the margin pool shall be used to provide guarantee to the loan bank.The loan Banks spread credit risk through margin portfolio,but the leverage effect of this combination model and the vagueness of the existing legislation and operation of margin guarantee may lay the foundation for subsequent legal disputes.About repayment obligations,when the debtor fails to press the lending bank to deduct the deposit account in the corresponding deposit or margin because of the financing guarantee company agreement is not other creditors apply for another freeze and deduct,practice about the nature of the guarantee deposit,deposit ownership and whether the loan bank enjoys the priority of compensation issues exist controversy,the judicial practice most quoted "security law judicial interpretation" of article eighty-five of this law about "money" pledge as a basis for the legal application,but the legal nature of the deposit guarantee and practice requirements,standards,and the effective important documents,such as no clear rules and qualitative.Commenting on the rules of a financing guarantee company deposit guarantee is not clear,the system is not sound and the operation is not standard,the deposit guaranteein the trial practice the substance also exist different referees,so the discussion in the loan business financing guarantee company deposit guarantee system and the practical operation related to solve path has a certain significance.With the innovation of finance and the development of financing guarantee mode,the guarantee of margin is widely used in practice because of its flexible operation and high efficiency.However,at the current legislative level,there is no clear and authoritative definition of the legal nature of margin guarantee.At the judicial level,different courts fail to unify the qualitative understanding of margin guarantee.At the operational level,due to the ambiguity of the rules of margin guarantee,operational disputes continue.In this article,through access to domestic and foreign related legal system,monographs,literature,a basic understanding of the security deposit guarantee related concepts,the main theory,formed after the preliminary framework of the security guarantee system,through the comparative study,empirical study and case analysis from many aspects,such as multiple perspectives on loan business financing guarantee companies in qualitative deposit guarantee.This paper is mainly divided into three parts.The first part is based on a practical case to analyze the practical operation mode of margin guarantee of financing guarantee companies in the loan business.Under the existing operation mode,there are theoretical difficulties and practical controversies in the application basis of margin guarantee,vague operation rules and unsystematic supervision.The risk exposure of the guarantee is mainly caused by the unclear ownership of the guarantee or the unclear agreement of the guarantee.As a result,the validity of the guarantee is questioned by the judicial organ or other stakeholders,and the lending bank may lose its priority.In the cited case,the case involved margin is derived from the financing party,which is deposited in the margin account of the loan bank.The margin is actually the subject matter of two pledge relationships,which is regarded as the counter-guarantee margin for the financing guarantee company by the financing party.In the case of financing guarantee company is to perform the agreement to bank deposit as performance guarantee.However,there is no consensus on the nature and ownership of margin in judicial practice.The majority of margin ownership is subject to the influence of "the same principle of currency ownership and possession",and it cannot be divided and handled according to the special agreement of account parties on margin.Different courts in similar cases have different judgment views.The key to the qualitative nature of margin guarantee of financing guarantee company is to clarify the ownership of margin.As for the ownership of security deposit,there is no explicit regulation on the ownership of money in China's legislation,and the property law does not define the property right property over money.As a kind of special movable property,the rule of ownership and circulation is applicable to law in principle.The second part,using the comparative research of deposit guarantee related conception,from the guarantee and deposit,deposit and the deposit,deposit guarantee right object three aspects to analysis and discuss the ownership of the ownership of money and monetary,deposit guarantees the main theories and existing theory of obstacle,to define the legal nature of deposit guarantees.The guaranty is divided into the guaranty of person and the guaranty of thing according to its nature.Compared with collateral,pledge,etc.,guarantee in practice is a weak guarantee.As a guarantor,the financing guarantee company,compared with other third-party guarantees,provides guarantee guarantee for the financing party,and provides the corresponding proportion of guarantee deposit based on the agreement with the loan bank.Article 85 of the judicial interpretation of the guaranty law stipulates that the debtor or a third party may establish the right of pledge by specifying and transferring the money to the creditor in the form of "sealing gold","special account" and "deposit".The deposit is different from the deposit in terms of applicable rules,delivery amount and identification basis.The object of the guarantee right of deposit is the specific deposit in the margin account.In the practical operation,the guarantee of margin may be the financing guarantee company or the financing party from the perspective of the pledgor;In terms of the form of money delivered,it may be cash or deposit money.Cash currency may be specified in the form of "sealed gold",and deposit currencymay be specified in the form of "special account".As a special movable property,money is widely used as a medium of exchange and a means of payment in commodity transaction and debt payment.As a special thing,there are many disputes in theory and practice about whether the quality of money can be established or not.In practice,corresponding rules should be applied according to the characteristics of currency and transaction.As a special chattel,cash money in civil law is applicable to the law of chattel property in principle.For deposit currency,the security right can be determined according to the special agreement of the parties to the account on the deposit currency and in combination with relevant laws and regulations in the commercial financial field,rather than the "the same principle of currency ownership and possession".The guarantee of guarantee for financing guarantee company is based on the special attribute of currency,which should be classified as special guarantee in legal form and analyzed in detail according to different situations.The third part,according to the legal nature of margin guarantee of financing guarantee company,puts forward the issues that should be paid attention to in the practical operation of the framework system of current law,the margin guarantee does not touch the liquid terms and does not violate the legal principle of real right.China's "security law" and "property law" all stipulate that liquid property is prohibited,mainly to prevent the debtor from using the high-priced goods to guarantee the lower creditor's rights in the case of embarrassment or necessity.Since the value of the creditor's rights and the guaranty is no longer liquidated,the creditor directly obtains the ownership of the guaranty,thus harming the interests of the debtor.In bank-securities cooperation,the margin itself is property.As the transaction medium and payment method in commodity transaction and debt payment,the creditor can directly get preferential compensation without changing price and does not violate the liquid terms.As the value right,the security property is mainly dominated by the exchange value of the subject matter.Through the analysis on real rights for security in order to ensure the repayment of the debt,and the combination of creditor's rights,usually more reflect the autonomy between the parties,as long as the party autonomydoes not violate the mandatory provisions of the law,not endanger public safety,and did not damage the interests of other third party,for financing,and promote economic and social development has the positive significance,should be allowed by law.Silver bear cooperation in business,in order to improve the efficiency of the guarantee,the fulfillment of the principle of make,financing guarantee company deposit guarantee form the margin in the pool of funds,actually has developed from "one-to-many" model to "many-to-many" mode,namely the margin in the pool all the funds to provide guaranty for bank loans,made more margin for debt guarantees,break through the maximum amount guarantee "one-to-many" mode,the existing theory of maximum amount guarantee may be difficult to provide theoretical basis for this kind of mode,must further regulation clear legislative level.As for the judgment of the essentials of guarantee,the existing theoretical dispute mainly divides into two elements theory(specific and transfer possession)and three elements theory(written agreement,specific and possession control).This paper,after analysis and demonstration,argues that the effective pledge of guarantee shall meet the three requirements of "written agreement","specificity" and "possession control",and proposes practical operation Suggestions based on the content of these three elements,and proposes corresponding internal control management and risk prevention ideas from the perspective of Banks and financing guarantee companies.