Analysis of automobile consumption loans and dealers cooperation mode of legal bank

Automobile consumption credit cooperative banks and car sales enterprises, are the banks to the borrowers to mortgage purchase of vehicles, and then by the dealer to provide joint liability guarantee or claim of debt repurchase by the dealer, the bank all the claims model. Therefore, the current bank and auto sales enterprises on car consumption loans cooperation mode mainly has two: one is the mortgage and guarantee mode, one kind is the mortgage plus debt buyback mode. The following are the legal analysis of these two kinds of patterns:

First, the vehicle mortgage plus dealers guarantee mode

Vehicle mortgage plus dealers guarantee mode, is the bank more common way, clear legal relations, but banks may encounter the following aspects in the realization of creditor's rights issue:

1Automobile consumption loans, bank mortgage guarantee creditor's rights existing prior to the problem.

"Guarantee law" twenty-eighth stipulates "the same creditor's rights have both guarantee and material guarantee, surety guaranty for the creditor to assume responsibility. Where the creditor waives the guarantee, be exempted from the guarantee liability gives up the right of the creditor's internal." "Guarantee law" first paragraph of article twenty-eighth is a provision of China's unique, legislation reason lies in: the creditors according to the contract to ensure that people enjoy is a kind of creditor's rights, and the creditor according to the mortgage, pledge, guarantee enjoys is a kind of property rights, according to the general principles of civil law property is better than that of the creditor's rights mortgage guarantees, priority should be given to the guarantee, therefore, when the same creditor's rights guarantee and security coexist, the surety of the secured creditor to assume responsibility. Moreover, it does not need to consider the order assurance and security establishment and the realization of the right order of performance, so as to avoid possible disputes.

"Real right for security priority Guarantee Law" twenty-eighth paragraph first is the legal principle, do not allow the party to change by way of agreement.

In view of automobile consumption loans, generally for borrowers to provide collateral to the bank to purchase vehicles, dealers to provide joint liability guarantee. According to the provisions of the guarantee law, both human security and property security, the guarantor shall assume responsibility for security in the matter of security. Therefore, once the bad loans, we can first mortgage on the exercise of vehicles mortgages, mortgage vehicle to discounted or through auction, the sale of the property price priority, the insufficient part to ensure party claims rights.

In practice, if the mortgage vehicle is difficult to find, not implementation, due to the current law has not stipulated in this case can be directly executed the guarantor, the guarantor has no legal basis for the direct execution, hard to get the support, so dealers to provide a guarantee that exist in name only, not to the auto loan guarantee role.

2"Guarantee law" provisions, to avoid the "mortgage rights priority principle" is an effective way to.

"Property law" of the people's Republic of China began to take effect in October 1, 2007, the law 176th stipulation: "be secured creditor have physical security and human security, if the debtor defaults or real right for security situation to achieve agreed upon by the parties, the creditor shall be in accordance with the contract to realize creditor's rights; no agreement or the agreement is not clear, the debtor himself provides property as security, the creditor shall first be material guarantee the realization of creditor's rights; provide material guarantee third creditors can material guarantee to realize creditor's rights also may request the guarantor to assume responsibility. Guarantee third people assume security responsibilities, have the right to recourse against the debtor." Therefore, the property law changed the relevant provisions of the guarantee law, in both the material guarantee and guarantee the realization of creditor's right, the parties may agree, that is reducible directed to ensure order, claim or claim to the collateral, banks should be based on the provisions of the law, modify the cooperation agreement with the car dealer in time. By agreement, giving banks in creditor's rights to realize the way of option, the bank has the right to claim of mortgage borrowers, but also have the right to directly request as a guarantor of dealers undertake suretyship liability. But attention is required, the provisions apply only to occur in the law after the entry into force of the guarantee, the guarantee law still applies the guarantee behavior occurred before the.

Second, the vehicle mortgage plus dealers repurchase debt model.

The formulation of this model is designed to avoid a mode of existence of the "mortgage rights priority principle" legal risk. However "repurchase debt" this pattern because belongs to a new thing, the judicial practice such disputes rarely, have different understanding about the validity of the model: one is that, this is of juristic act subject to conditions, when the conditions hold if a convenient for the other party has the right to buy a debt; think, named "repurchase debt" is "the independent guarantee", should be recognized as invalid clause; another that repurchase debt cannot perform (vehicle registration organ shall not accept mortgage registration, the creditor cannot assignee obtains the right of mortgage), therefore invalid. In short, the law has not this model make sure to explain, because there are many differences in the judicial practice, once to resort to the law, the bank may have the risk of losing.

After the property law in force, according to the provisions of the real right law 176th, established the agreed priority principle, can change the "principle of statutory mortgage rights priority" to agree a way, as long as the cooperation agreement expressly agreed in the property security situation, the bank has the right to first to ensure human rights advocate, which has can maximize the protection of the interests of the banks, the future is not necessary to use "repurchase debt" this mode of cooperation.