A Case Study On A Financial Loan Contract Dispute Of Rural Commercial Bank V.company A,company B And LiuMou

To help small and medium-size enterprises get through the difficulties of cash flow,Chinese government requires commercial banks to put no pressure on debtors for loans,which can be regarded as policy support on Paying an Old Loan with a New Loan.As for law,contract guarantee liability and payment precedence in Paying an Old Loan with a New Loan can only be found in article 16 of Interpretations of Civil Code on Contract Guarantee System.This article comes from article 39 of Interpretations of Guarantee Law,which is no longer valid.However,article 16 never defines Paying an Old Loan with a New Loan,which causes argument on the problem “If the use of Bridge Funds can be recognized as Paying an Old Loan with a New Loan” in judicial practice.Besides,some judges misunderstand Malicious Collusion in the circumstance of Paying an Old Loan with a New Loan,and they misunderstand the contract guarantee liability mentioned above as well.Therefore,it is not only of theoretical significance but also of practical value to study a typical case and sort out the relevant problems.Firstly,the paper introduces the background and the significance of studying Paying an Old Loan with a New Loan,the status quo and the study methods adopted.Then there is the chosen case of the financial loan contract dispute.The author briefly introduces the basic facts of the case,the verdict and the three focuses of the dispute,that is,(1)whether the use of Bridge Funds can be recognized as Paying an Old Loan with a New Loan,(2)whether both parties of the new loan collude in bad faith,(3)whether the guarantors bear the guarantee responsibility.The author makes the analysis according to the concept,basic theory,relevant legislation and judicial practice,and draws the conclusions as follows based on the facts and law.Firstly,the use of bridge Funds should be recognized as Paying an Old Loan with a New Loan.Secondly,Malicious Collusion between creditors and debtors can not be approved certainly without guarantors’ consent.Thirdly,the guarantor shall bear the guarantee liability for the new loan when the guarantors are the same.Finally,the author proposed some advice on business practise and judicial practise as follows:(1)The bank should do the precedent evaluation and make reasonable determination on the loan term,(2)the bank should inform the guarantors in writing of Paying an Old Loan with a New Loan and the judges should correctly recognize collusion in the circumstance of Paying an Old Loan with a New Loan,(3)the guarantors of the new loan shall carefully confirm the purpose of the loan and the judges should collect evidence actively in suspected case of Paying an Old Loan with a New Loan.These suggestions are brought up in the purpose of resolving such disputes as the target case properly and helping establish healthy Physical Economy.