Research On Legal Issues Of External Guarantees Of Commercial Bank Branches

In practice,it is not uncommon for the branches of commercial banks to cause disputes and be sued to the court.Judging from the trials of different courts,Chinese courts have different judgments on the legal issues related to the external guarantee of the branches of commercial banks.Through sorting out and analyzing the relevant practice cases retrieved,this paper found that the focus problems caused by the branches of commercial banks in judicial practice mainly include the qualification of the foreign guarantee of the branches of commercial banks,the way of authorization and the relevant responsibility bearing issues.First of all,the Civil Code of our country has made the latest provisions on this issue,which has deleted the restriction of the Guarantee Law and its judicial interpretation on the branches and functional departments of the enterprise legal person as the guarantor.However,this does not indicate that the Civil Code recognizes that the branch of enterprise legal person enjoys the independent guarantor qualification.Branches of enterprise legal person shall be authorized by the company as a guarantor,only when the Supreme People's Court,the applicable law of the People's Republic of China civil code guarantee "the explanation of some specified branch of an enterprise as a legal person,financial institutions,the branches of the external guarantees shall cover the authorization of the enterprises,financial institutions,and commercial bank law" as a special law also stipulates that about the legal person status branches do not have commercial Banks,the business can only be strictly in accordance with the limits of authority as prescribed by the head office of the development of the business,so commercial bank branches no independent guaranty.Secondly,for the effectiveness of the commercial bank branches guaranty problem because this article think that the commercial bank branches and no external guarantees,the unauthorized guaranty is invalid,in practice for the effectiveness of the commercial bank branches guaranty problem is mainly around the headquarters of authorization,this paper argues that licensing shall adopt specific authorization.Finally,after sorting out the qualification and effectiveness of the guarantee provided by the branches of commercial banks to foreign countries,the responsibility of the branches of commercial banks to undertake the guarantee will be relatively clear.When the guarantee contract is confirmed to have no legal effect,the responsibility of the branches of commercial banks,the head office and the creditors can be determined according to their faults.