Bank loan business risk and prevention group

Authors: Sun Jiangbo

March 22, 2007

As banks, whether commercial banks is not the policy banks, credit business is a business is very important, everyone has a very deep experience in the business of lending, easy loans difficult, there is a big risk, it reflects is the bank loan business risk, a risk business, and the law risk. Business risk and sometimes unpredictable, but the legal risk if you know some related legal knowledge, serious and responsible, can be prevented. Below I legal problems related to bank lending concern with the legal and judicial interpretation of the new study together with you. Want to give you some useful enlightenment.

The first project Legal problems related to loan, secured the signing of the contract

One problem, the borrower, guarantor qualification

(a) the main borrowers, guarantors qualifications

1The borrower shall have the qualification of the subject

According to the "loan general" provisions of article seventeenth, the borrower is divided into the following categories:

(1) enterprises (thing) industry corporate;

(2) by the industrial and commercial authorities (or authority) approved the registration of other economic organizations;

(3) approved by the industrial and commercial registration authority of the individual industrial and commercial households;

(4) with full civil capacity of natural persons of the people's Republic of China nationality.

Other economic organization is that: (1) according to the registration and obtain a business license of the private - owned enterprises, partnership organization; (2) partnership joint ownership enterprises registered in accordance with the law and obtain a business license; (3) to receive a registration in China, the business license of the Chinese foreign cooperative enterprises, foreign-funded enterprises; (4) approved by the civil affairs department for registration social organizations registration certificate of social groups; (5) branches of legal person established according to law and obtain a business license; (6) the people's Bank branch, Chinese the specialized banks in various localities; (7) the branch organization of People's Insurance Company of China located in the country; (8) approved the registration and obtain a business license of the township, street, village enterprises;

2, guarantor should have the qualifications and conditions

According to the "security law" and the judicial interpretation, the following five main can guarantee people: (1) the natural person has the capacity for civil conduct; (2) the enterprise legal person; (3) financial institutions; (4) institutions, engaged in business activities of social groups; (5) other organizations.

Other organizations as a guarantor of security law, shall be registered in accordance with the law and obtain a business license shall audit organization, business license, tax registration certificate, business license for special industry audit certificate and a copy of the original, and the registration of industrial and commercial bureau or the competent industrial department to verify, confirm the subject qualification:

(1) owned enterprises, partnership enterprises;

(2) joint venture;

(3) Sino foreign joint ventures, cooperative enterprises;

(4) approved by the Civil Affairs Department registered social groups;

(5) the township, street, village enterprises;

The guarantor shall meet the following conditions:

(1) the guarantor shall be third people, is the loan contract legal person, but not the creditor and debtor other organizations and natural persons.

(2) the legal guarantee, shall possess the legal "business license of enterprise legal person", and the annual inspection.

(3) other organizations as the guarantor, issued by the competent department of the government shall hold the certificate of incorporation, and the annual inspection.

(4) belongs to the financial, construction, food, medicine and other special industry need approval to operate, issued by the competent department of the government shall hold a business license.

(two) the borrower shall also have other conditions and restrictions

1, "general loans" seventeenth paragraph second borrowers to apply for loans should have the conditions:

The borrower to apply for loans, should have the product market, production and management efficiency, not misappropriated loan funds, with the basic conditions of the credit, and shall meet the following requirements:
(1) with regular servicing ability, the original loan interest paid and expire loan has been paid; no settlement, has been recognized by the lender repayment plan.
(2) in addition to the natural person and does not require institutions approved by the business sector registered, shall be subject to the business sector for the annual inspection procedures.
(3) has been open basic accounts or general deposit account.
(4) in addition to the provisions of the State Council, the limited liability company and Limited by Share Ltd of foreign equity investment accumulative total amount does not exceed 50% of its total net assets.
(5) the borrower's debt to asset ratio lender compliance requirements.
(6) for the medium-term, long-term loans, corporate owners and project new project required a total investment of the proportion is not lower than the state investment projects of the capital ratio.

2, "general loans" twentieth of the borrower's limited:
(1) shall not be a lender with a area of two or more than two of the branch loan.
(2) shall not provide false or conceal important facts of the balance sheet, income statement to the lender.
(3) shall not engage in loans and equity investments, except as otherwise provided by the state.
(4) shall not engage in speculation in securities, futures and so on loans.
(5) in addition to obtain qualified real estate business according to law shall not use the loan to the borrower, the real estate business; obtain qualified real estate business according to law shall not use the loan to the borrower, engaged in real estate speculation.
(6) may obtain loans for the loan to seek illegal income.
(7) do not use foreign currency loans in violation of the provisions of the State Administration of foreign exchange.
(8) shall take the means of cheating loan.

Three.Laws banning the guarantor and guarantee special

1The following units, or organizations may not be as guarantor:

(1) the state organs, armed forces, police may act as a surety;

(2) schools, kindergartens, hospitals, radio and other undertakings for public welfare, the objective of social organizations may not act as a surety;

(3) between the branches of the same enterprise shall ensure mutual, branches without authorization of the enterprise as a legal person, or beyond the scope of enterprise legal person authorized in writing, shall not be a guarantor.

(4) corporate functions may act as a surety;

(5) branch creditors may act as a surety;

(6) the creditor's wholly-owned subsidiary may act as a surety.

2, Ensure that prohibited exceptions

In accordance with the provisions of laws, administrative regulations and judicial interpretation of the state, the following organs, institutions and organizations, can be a guarantor:

1, the state organs as approved by the State Council for the use of loans of foreign governments or international organizations ";

2, institutions, engaged in business activities of social organizations in order to ensure the people, if there is no other cause of the suretyship contract is invalid, the guarantee contract should be recognized as a valid

The written authorization legal branch with 3, corporate enterprises, to provide a suretyship within the scope of authorization.

3, branches of the suretyship liability

An enterprise as a legal person of its branch institutions authorized by the guarantee shall be in written form, specify the scope of authorization.

Guarantee behavior of branch offices shall and authorized scope, and can not go beyond the scope of authorization.

Focus on the authorization scope of review shall include: the guarantee creditor's rights and its types, the guarantor and the conditions, the annual scale and single amount of security, security guarantee, the guarantee period. If the written authorization is unknown, shall be deemed liable for all the debts.

Branches of legal person undertake suretyship liability, or because the guarantee liability, the legal person property under the management of the branch, not enough to take the enterprise as a legal person, bear.

4, invalid guarantee department

Corporate departments shall not provide guarantee.

The creditor knows or gross negligence and corporate departments signed a guarantee contract, the losses caused by the creditor shall bear.

The creditor does not know or should know, or an enterprise as a legal person or its functional departments to conceal the true identity, the creditor and the enterprise as a legal person, according to the "security law", according to the degree of the respective faults, bear corresponding civil liability.

(four) review the borrower, the guarantor shall review the documents and data

1, the borrower shall provide and ensure that the per capita of the documents and materials (companies and corporations):

(1) a copy of business license (original) and annual inspection certificate;

(2) a copy of the tax registration certificate;

(3) the register of shareholders or the board of directors of;

(4) the identification certificate of the legal representative;

(5) the articles of association of the company

(6) commitment document already provide guarantee for other creditor's contract, data, or proof of unsecured guarantee;

(7) seal agent involved in contract negotiations, signing, guarantee, must provide the power of attorney.

2, ensure the following documents shall also be submitted to the people:

(1) Sino foreign joint ventures, Sino foreign cooperative enterprise to provide a guarantee, should provide the company (enterprise) the resolution of the board of directors;

(2) to provide security contractor, shall also submit the consent of the employer commitment document guarantee;

(3) the guarantor is state-owned enterprises or wholly state-owned company, should provide the superior competent department agreed to guarantee the approval and the approval of the board of directors guarantee resolution;

(4) the guarantor is limited liability company, Limited by Share Ltd, shall provide the right agency decision, the statute and rules of procedure, and the resolution of the board of directors.

　"Company law" article sixteenthThe company intends to invest in any other enterprise or provide guarantee for others, in accordance with the provisions of the articles of association of the company, a resolution by the board of directors or shareholders' meeting, shareholders' general meeting of association of the company; the total amount of investment or security and the amount of a single investment or security limit provisions, shall not exceed the prescribed limits. The company is a shareholder or actual controller to provide guarantee, must be approved by the shareholders' meeting or the shareholders general assembly resolutions.
The provisions of the preceding paragraph shareholder or actual controller of the provisions of the preceding paragraph by the shareholder dominated the provisions of the preceding paragraph, shall not participate in voting on the matter. The vote on the voting rights of the other shareholders attending the meeting of more than half of the.

Two legal issues, the collateral

(a) the legal mortgage property

Collateral shall be in accordance with the "security law" in article thirty-fourth, the following property can be mortgaged:

1, urban residents all private housing, rural villagers all private housing;

2, the construction unit shall have the right to dispose of state-owned land use rights and investment in the construction of the assets;

3, the mortgagor trees, crops, reservoir fish, buildings and other fixed objects on the ground;

4, the mortgagor all machines, transportation vehicles and other property, including aircraft, ships and other special movables;

5, the mortgagor shall have the right to dispose of the assignment, transfer, transfer of the use right of state-owned land and houses and other fixed objects on the ground;

6, the mortgagor shall have the right to dispose of state-owned machines, transportation vehicles and other property;

7, the mortgagor and the right to use the contract by the employer agreed to mortgage the barren hills, barren, barren hills, wasteland, wasteland land; (180th of the property law "provisions of the tender, auction, public consultation and the land, the land contracting right of management")

8, according to other property mortgage.

180th of the property law "provisions of laws and administrative regulations, not to prohibit other property mortgage"

Article 180thThe property of the debtor or the third party has the right to dispose of collateral:
(a) the buildings and other attachments to the land;
(two) the right to the use of land for construction;
(three) the right to land contractual management is acquired through bid invitation, auction, public consultation and the wasteland;
(four) production equipment, raw materials, semi-finished products, products;
(five) is the construction of buildings, ships, aircraft;
(six) transportation;
(seven) the law, administrative rules and regulations did not prohibit other property mortgage.

Two.Prohibit mortgage property

1, prohibit the circulation of property; "guarantee law" provisions of article fifth "judicial interpretation on the laws, regulations prohibited the circulation of property or non transferable property secured, the security contract shall be invalid"

2, the state property; "guarantee law" provisions of article third "judicial interpretation of state organs and undertakings for public welfare, the objective of social groups to provide guarantee in violation of the law, the security contract shall be invalid".

3, schools, kindergartens, hospitals to welfare institutions, social groups, medical and health facilities, educational facilities, and other public facilities;

4, the ownership of the land;

5, the cultivated land, residential land, plots, explained Hill collective all land use rights (with the exception of barren hills, wasteland, barren, barren hills);

6, to be closed, seizure, supervision of property;

7, ownership, right of use is unknown or disputed property;

8, illegal, illegal buildings.

Be careful.1, public facilities outside the property mortgage

Laws banning public to property mortgage. However, public welfare institutions and social bodies engaged in public welfare for its own debt to non public facilities to provide collateral, protected by law.

The social welfare institutions, including: school, kindergarten, hospital, health and epidemic prevention station, library, museum, art gallery, Museum of science and technology, cultural, homes for the elderly, welfare homes, temples, parks, stadiums and other institutions. The newspaper, publishing house, park, scientific research institutions and other units do not belong to the social public institution.

Community, social welfare includes: social groups, the Red Cross, Federation of the disabled, environmental protection association, religious association, people's friendship association. Institute of certified public accountants, lawyers association, Medical Association, the bird Association Industry Association does not belong to the social bodies engaged in public welfare.

2, the property law 182nd stipulation for mortgaging building, the right to use the land for construction shall be mortgaged together the building occupancy. Mortgaging the right to use construction land, the buildings on the land shall be mortgaged together. If the mortgagor fails to in accordance with the provisions of the preceding paragraph shall be mortgaged together, not mortgage property as mortgage together.

3, the property law article 183rd Township village enterprises, construction land use rights shall not be mortgaged separately. The township village enterprises, factories and other buildings of the mortgage, the construction within the area occupied land use rights shall be mortgaged together.

Three, handle the legal issues in mortgage registration

(a) the potency and the types of mortgage registration

According to the provisions of the "security law" at forty-first, 42, 43, mortgage registration legal effect according to the collateral, divided into effect against two kinds of legal effect.

1, the right to use the land, real estate, forest, aircraft, ships, vehicles, equipment and other enterprises of the chattel mortgage, must register the mortgaged property, only to do the registration of mortgage, the mortgage will take effect. Department register the mortgaged property:

(a) there will be no ground to the mortgage of land use rights, land management department issued by the land use right certificate;

(two) to the city real estate or township (town), village enterprises, factories and other buildings of mortgage, as designated by the local people's government at or above the county level departments;
(three) based on forest mortgage, forestry administration departments at or above the county level;
(four) in aircraft, ships, vehicles are mortgaged, the registration departments for means of transport;
(five) to the enterprise equipment and other chattel mortgage, to the administrative department for Industry and commerce property is located.
2, other property subject to a mortgage, can volunteer to register the mortgaged property, mortgage contract is effective from the date of signing. If the parties fail to register the mortgaged property, may not be against the third person. The parties shall register the mortgaged property, the registration department of the local notary department mortgage.

Note: the property law article tenth provisions of the state on the unified registration system of immovable property. Institution and registration registration registration scope, stipulated by laws, administrative rules and regulations.

Article 246th of the property law, administrative regulations on the law without moving range, property registration registration and registration regulations, local laws and regulations may be made in accordance with the relevant provisions of this law.

The property law article thirteenth the registration authority shall have the following acts: (a) requirements for real property assessment; (two) repeated registration in the name of annual inspection; (three) other acts out the scope of registration duties.

(two) the registration of real estate mortgage

For the use right of state-owned land and the housing mortgage, should abide by the "security law" in article thirty-sixth, in accordance with the "to go with the housing, handling real go anywhere" principle.

For the registration of real estate mortgage, shall apply to the registration authority check the following documents:

1, the parties to the mortgage of the identity certificate, certificate or the qualifications of a legal person;

The application for the registration of 2, mortgage;

3, the real estate mortgage contract;

4, the land use right certificate or proof;

5, housing management authority certificate, including the "all of housing", a total of housing, must also be submitted "a total of housing" and the other co owners with written proof of mortgage;

6, the mortgagee has the right to mortgage "resolution" and register the mortgaged property "authorization" and other documents and proof;

7, the value of the mortgaged real estate appraisal report "";

To acquire the certificate of house ownership of real estate collateral, the registration organ shall his right to make records in the original "all of housing" after, the mortgagor receives. And issued "housing He Xiang of mortgagee". Thus, mortgage is established.

(three) the enterprise chattel mortgage and financial group mortgage

According to the provisions of the State Administration for Industry and commerce "enterprise movables pawn registration management approach", in addition to the aircraft, ships, vehicles, enterprise mortgage to the following property owned or has the right to dispose of, the mortgage contract shall become effective on the date of:

(1) the equipment;

(2) the raw and auxiliary materials;

(3) the enterprise products or commodities;

(4) other enterprise according to law, chattel mortgage

Enterprise with its movable and immovable property, such property shall be mortgaged together the collection, including the right to dispose of the right to use the land, plant, machinery and equipment and all other property or some part of the scope of the mortgaged property shall be mortgaged together, to the registration of mortgage property shall prevail.

Property law provisions of article 181st of the floating mortgage: "written agreement by the parties, enterprises, individual industrial and commercial households, agricultural production operators can use the existing as well as some production equipment, raw materials, semi-finished products, mortgage products, if the debtor defaults or parties agreed for realizing the mortgage right, the creditor shall have the right to on the realization of the right mortgage chattel priority".

(four) the maximum mortgage

1, the independence of the mortgage of maximum amount

The mortgage and mortgage with the same from the attribute, and the secured claim has occurred between subordinate subordinate and destroy. But the mortgage of maximum amount compared with the general mortgage has a very special place, that is independence. The independence of the mortgage of maximum amount mortgage performance in the first set, the future creditor's rights as the premise, in the event of a subordinate and secured creditor's rights, the existence of the time difference, which can be understood as the mortgage in place and secured creditor have no attributes between. Secondly, the mortgage in the accounts and the secured creditor of individual claims no one to one relationship between the mortgage of maximum amount guarantee, people do not assume responsibility for security, and between individual creditor cannot attribute. Once again, the maximum mortgage in accounting does not vary with the transferred guarantee creditor's rights transfer, the transfer and the secured creditor's rights between no property, the mortgage of maximum amount only to specific debtor or specific trade in continuous occurrence of creditor is responsible for, in the final, before also is the highest amount mortgage exercise conditions achievement, not from belong to which a creditor's rights. Finally, the mortgage of maximum amount mortgage duration is not due to a specific debt elimination and eradication, elimination of a specific claims, does not mean that the mortgage of the obligatory right guaranteed by all destroyed, and the security of the mortgage rights are not a particular creditor.

2The accounts, mortgage of maximum amount

The final of the mortgage of maximum amount mortgage is determined, which causes were standardized in mortgage of maximum amount guarantee range, calculating the amount of debt secured by the mortgage. The final of the mortgage means an end is determined and the maximum amount of mortgage credit relationship.

(1) mortgage contract settlement term to

If there is no agreement accounts, the mortgage rights will be extended indefinitely, collateral to all people would be very bad. If the mortgage contract agreed to the final stage, the final period to the amount of credit, the mortgage of maximum amount determined. In the settlement period by the mortgagor and the debtor to repay the debt.

The mortgage contract if the battle is no agreement or the agreement is ambiguous, the mortgage to the mortgagee written to determine the mortgage of maximum amount guarantee, mortgage of maximum amount accounts for mortgages written determine the duration or written notice to the mortgagee.

(2) the end of a row of transactions

If it is to provide continuous trading of mortgage of maximum amount mortgage, when the contract has not been agreed upon closing date, end date of continuous trading for the mortgage of maximum amount mortgage accounts.

(3) no specific claim does not happen again

Guarantee the maximum mortgage debt no longer have the possibility of the occurrence, causes the mortgage accounts. For example, because the borrower default caused by bank loan contract in accordance with the provisions of the contract or the law lifted before the final period to, because no longer occurs after the release of loan, so the banks and mortgage person may request the credit accounts in the loan after the lifting of the contract.

(4) the mortgaged property seized, the auction for property preservation or execution of programs

(5) the court's acceptance of the debtor or the mortgagor bankruptcy cases.

Article 206th of the property lawAny of the following circumstances, the mortgagee to determination of the claims:
(a) agreed to determine the expiration of the period of creditor's rights;
(two) have not agreed period for determination of creditor's rights or the agreement is not clear, the full two years of mortgage or mortgages since the establishment of the mortgage rights after the date to determine the claim request;
(three) the new debt is not possible;
(four) mortgage property has been sealed up, detained;
(five) the debtor, the mortgagor is declared bankrupt or has been canceled;
(six) other circumstances determined in accordance with the law of creditor's rights.

Judicial interpretation of article eighty-first Guarantee the maximum mortgage debt range, not including the mortgage is closed due to property preservation or enforcement procedures or the debtor, the mortgagor bankruptcy occurred after the creditor's rights.

3The maximum amount mortgage, change

Judicial interpretation of article eighty-secondThe maximum change of the mortgage contract, the mortgage period, the change in order to fight the mortgagee, the people's court shall not support.

For example: the collateral value of 5000000 yuan, the highest amount mortgage of maximum amount is 3000000 yuan, after the order mortgagee secured amounted to 1500000 yuan. If the mortgage of maximum amount from 3000000 yuan 4000000 yuan for the change. In the settlement, the first of the maximum amount hypothec person a 3000000 yuan, and also after the order mortgagee 1500000 yuan, the highest amount of change of the mortgage rights people after a 1000000 yuan, only after people get paid 500000 yuan mortgage in the remaining repayment mortgage at. For example, if the closing date scheduled for March 1st, after the mortgage parties change until April 1st, when it expires in March 1st claims secured by the mortgage balance amounted to 2500000 yuan, 2000000 yuan and the debt between March 1st and April 1st, then to the mortgage repayment, first by the maximum mortgage right according to the March 1st final result repayment 2500000 yuan, and the post order mortgagee in collateral value of the remaining 2500000 yuan in compensation of 1500000 yuan, the amount of debt between 1000000 yuan worth of mortgage repayment remaining again from March 1st to April 1st.

4The main creditor, transfer and mortgage of maximum amount mortgage

"Guarantee law" sixty-first article "the mortgage principal creditor's rights shall not be transferable" explanation of the Three Views: one is the provisions of the guaranty law is prohibited articles, banned all maximum mortgage contract of assignment, including the transfer of creditor's rights after the final period; two is the article explanation for the mortgage of maximum amount may not be transferred before the final accounts after the creditor, creditor's rights transfer is not prohibited; three is the way it is interpreted as the mortgage creditor can transfer accounts, accounts of creditor's rights transfer occurs only assignment results, not with the transfer of the mortgage. The Supreme People's court in the "about people's court and the acquisition of Asset Management Co, management of state-owned commercial banks related cases how to apply the law of the provisions" eighth rules "according to the" security law "provisions of article sixty-first, occurred during the transfer of the main creditor creditor banks in the mortgage security debt contracts, invalid creditor's rights transfer behavior. Occurred in the maximum mortgage debt after the expiration of the contract, transfer of creditor's right of the main creditor, creditor's rights transfer behavior can be identified". Therefore, second kinds of opinions of judicial interpretation adopted. Therefore, we can draw the conclusion: in the mortgage after the final accounts, the secured creditor quota, the mortgage contract creditor's rights, namely the norm after claims may be transferred, the transfer of creditor's rights in the main contract before the final accounting, the transfer is invalid.

Opinions on current by the above way, but this rule is unreasonable, because there is no truth and reason to restrict the transfer of creditor's rights, so we are pleased to see the "property law" stipulates that the 204th "claims secured by the mortgage before, part of the assignment, the maximum mortgage right shall not be transferred, but the Parties otherwise agreed otherwise". Property law is adopted for the third kinds of opinions.

Security law, mortgage may not be separated from the creditor's rights guarantee and be transferred, only with the creditor's rights assignment.

(four) mortgage audit

Review of the mortgage and related documents and vouchers shall be

1, check the likelihood of collateral, mortgages and mortgage registration authority

(1) the certificate of ownership of collateral and related documents;

(2) to common property as mortgage, the mortgage should be provided for common property that share of possession, and there were other people agree with a mortgage to prove that the property;

(3) mortgage property ownership limited liability company, Limited by Share Ltd, joint venture (cooperation) enterprise or contracting enterprises of all, should be submitted to the shareholders' meeting, the board of directors of the enterprise or the employer's power sectors agreed to mortgage resolution and authorization, or submitted to the government departments in charge of state-owned enterprises approved documents mortgage key equipment the.

2, check the list of collateral, on-site verification or the actual investigation of the premises and possession of collateral, mortgage and registration, rental, storage, use, legal status, insurance and income, price, service life and quality of state actual situation.

The basic data and the list of collateral, should include: name, quantity, quality, condition, location, the same collateral has set to other creditors that mortgages, mortgage registration authority will prove the mortgage registration, mortgage insurance documents etc..

(five) the registration organ on "effect of the mortgage term"

1The registration authority, the mortgage term legal capital does not affect the effect of mortgage

In the "security law" enacted after the practice registration authority, to guarantee the privilege to determine the guarantee period is a common phenomenon. For example, in real estate mortgage registration, the registration authority to provide standard mortgage contract, determine the mortgage term, otherwise do not register. In the registration, and if the mortgage expires, requirements for registration or said that continued climbing again, otherwise called mortgage has been destroyed. The direct purpose of the registration authority that is to make. The objective is not conducive to the protection of creditor's rights, increase the cost of guarantee. For these the appointment and registration mandatory mortgage term problems, caused the long-term controversy in theory and practice. In the "guarantee law judicial interpretation" of the problem has been solved, judicial interpretation of the provisions "for the agreement of both parties or the registration department registration during the guarantee period, the continued existence of security interests are not legally binding," during this provision denies the guarantee can eliminate the real right for security, denial of the guarantee period of the legal significance. Because the property law is mandatory law, real right law is a fundamental principle of the real right, set, and the effect of the real right shall be stipulated by laws and regulations, the Convention and the relevant administrative organs to destroy property during the period of no legal basis, of course is invalid. In the second paragraph thirteenth of the property law also clearly stipulates that "the registration institution shall not repeat registration in the name of annual inspection".

Duration of 2, the real rights for security

Since the judicial interpretation of the provisions of the set of parties and registration authority guarantees cannot destroy guarantee period, then the real rights for security in addition to destroy the way of legal provisions, whether to exist forever? The judicial interpretation stipulates that "the end of limitation of guarantee guarantor rights of guarantor, the real rights for security in the limitation of action after the end of the two years, the people's court shall support". This article is about real right for security can be eliminated due to a certain period after. According to the judicial interpretation, we can easily calculate the real right guarantee survival time: if the main creditor litigation prescription starting from the date of calculation, creditors have no exercise of creditor's rights, general limitation of our country law stipulates as against the date of 2 years, then from the right is, duration of creditor's rights guarantee. Real right for independent creditor's rights violations within 4 years, which is the 2 + 2 = 4. In other words, if the claim has not been completed, has been interrupted, then guarantee right has existed. Interpretation of law of real right of pledge by the limitation of action system of influence.

But, unfortunately, the "property law" 202nd article "the mortgagee shall exercise mortgages during the principal creditor's right, not exercising, the people's court shall not protect". Entered into force in October 1, 2007 "property law", the limitation of action is dependent on the continued existence of security interests of the main creditor, if the principal creditor's right has been extended, guarantee right can be exercised at any time, if the principal claim have limitation, is real right for security is not protected by law. Compared with the judicial interpretation, the property law on the protection of creditor's rights to the small number. This point, please remember, must be in the period of limitation of action of the main creditor to exercise mortgages.

Legal problems related to second special collection, renewal, assignment of debt

A debtor, on the question of limitation

1General provisions, the limitation of action

Limitation of actions is a kind of legal system, the system of supervision and the parties concerned and to exercise their civil rights as soon as possible, if the parties do not actively advocate their rights to lose after a certain period of time after the right to win a lawsuit. In accordance with the "general principles of civil law", the general limitation for two years, the period of limitation of action from knows or should know that his rights have been infringed upon. The limitation of action for litigation, a party demands or agrees to interrupt obligations. From the time of the interruption, the period of limitation of action re calculation.

2, loan and the limitation of action

According to the loan contract, "the right is violated" refers to the debtor's repayment period expires without repayment date. In order to ensure the limitation of not more than two years, the creditor shall expire on the repayment period of two years from the date on which the debtor within that creditor's rights, as the bank is mainly take the collection way. Banks in the collection, the limitation interrupt occurs, the limitation period for two yearsFrom the break dateThe re calculated. The creditor must before the expiry of aging re calculated at every time after the interruption of the claim, in order to ensure the continuation of the period of limitation of action.

For example, a company in 2000 January 1 to bank loan, the repayment period of July 1, 2000, after the expiration of failed to repay, then the bank should carry out the collection in 2002 before 1 July, claim the creditor's right. If the bank is in 2002 1 May, a collection of limitation of action, then start from May 1, 2002 to date. If a company fails to repay, the banks will be collected again before May 1, 2004, to ensure that no more than the limitation of action. If the bank mistakenly think that in 2004 before 1 July collection is wrong, only in May 1, 2004 after collection, causes the expiration of limitation, the bank loses the right to win a lawsuit.

The limitation of action for the interruption occurs:

(1) Notice of payment. Points, must be issued in the period of limitation of action and must have the signature of receipt. The debtor refuses to sign, the notary service.

(2) to reach beyond the limitation of action after the repayment agreement belongs to the new debt, is still protected by law.

(3) exceeded the limitation of action shall still collection notice signed or stamped, it shall be regarded as re confirmation of the original debt, the creditor debtor relationship protected by law.

(4) buckle repayment of principal and interest and principal debtor also caused interruption of prescription.

(5) litigation, arbitration cause the interruption of prescription.

Two, the guarantee period, guarantee liability and limitation of actions

(a) general provisions during the period of guarantee

1, the guarantee period is to ensure that people in the guarantee contract during the guarantee liability, the creditors may require the guarantor to ensure the effective period of the.

2,The guarantee period in the contract should be clear and specific agreement, if agreed, in accordance with the contract.

The main contract clearly agreed the principal obligation is the specific period, the guarantee period of independent debt discharge period the date of expiration of the.

3No agreement or the agreement is not clear, during the period of guarantee

Both the general guarantee or joint responsibility to ensure that, in any of the following circumstances, as there is no agreement guarantee period. Assume responsibility for performance of the principal obligation during 6 months from the date of expiry.

(1) without the agreement guarantee period;

(2) the term of suretyship agreed early on the main debt discharge period;

(3) agreed warranty period equal to the time limit for repayment of the debt;

Ensure the contract guarantee debt principal repaid pm until similar content, as an unknown, the guarantee period for performance of the principal obligation at the expiration of the period of two years from the date of the

4Guarantee and warranty period, whether the person responsible

In the guarantee period, creditors not to prosecute or fails to apply for arbitration, the general Guarantor from bear the liability of guarantee.

In the guarantee period, the obligee does not require joint liability guaranty, joint responsibility to ensure that people from the guarantee liability.

5The special nature of guarantee period

Ensure and litigation limitation period has obvious difference. The guarantee period is not due to any reasons, and the suspension of the legal consequences of prolonged interruption. In law, the guarantee period is the period, the period is the period the rights prescribed by law to exist, when the expiration of this right is destroyed. The period for the same period, not because of any reasons and suspension, interruption and prolong. The guarantee period is the exercise period to ensure human recourse, during the warranty period the creditor does not exercise the right, the guarantor is exempt from guarantee responsibility. So as a creditor in the guarantee period must be at least to ensure the exercise of the right time, otherwise the guarantor due to the expiration of the guarantee period from bear the liability of guarantee.

In the guarantee period if a creditor fails to exercise the right, at the expiration of the guarantee period will destroy the guarantee creditor's rights, the guarantor will never bear the liability of guarantee. Unless the guarantor will perform the guarantee responsibility, or even to guarantee responsibility population head or a written commitment, creditors have no right to ask the court for compulsory guarantee performance. Therefore, the guarantee period expires, the guarantee liability only in one case "regeneration", namely the guarantor to new guarantee to the creditor. This guarantee is not the old that make the dead come back to life, but the new commitments, in practice to ensure that people in the guarantee period expires is a commitment to continue to perform the original suretyship liability, or to provide a guarantee, the difference is the key to guarantee people have no written guarantee, said. This is a key, verbal representation cannot occur to ensure the consequences, writing should be the guarantor provides new guarantee for creditor's rights, rather than give up that brought about during the period of interest, because the latter cannot be enforced by the court. As for the debtor's behavior, such as in the notice of payment on the seal or the re signing of the repayment agreement, the guarantor does not affect.

6, the guarantee period and limitation of action

Ensure and litigation limitation period although there are many similarities, but also has essential difference. Ensure the connection point period and limitation of action is, creditors in the guarantee period to ensure party claims rights, the guarantor does not exempt from guarantee, creditors of the suretyship liability of the surety to control and limitation of. In other words, to ensure the people during the two time is not affected by the creditors the opportunity, once the guarantee period, one is the limitation of action. If the creditor does not in the guarantee period to ensure human rights, ensure people can escape, and thus not subject to creditors; if the creditor to guarantee that the rights, but in the next 2 years not to guarantee its undertake suretyship liability, limitation of action to complete, the guarantor is also due to aging and free finish investigation.

(two) the guarantee liability and limitation of action

In practice, often takes the limitation problem of the debtor, but often ignore to ensure the limitation problem of.

1, the guarantee contract litigation prescription starting

During the period of the guarantee, whether it was agreed, or security law, the creditor has filed a lawsuit or arbitration against the debtor, ensure that the specified period for the interruption of the limitation of actions, began to calculate a limitation of action from a judgment or arbitral award date.

Joint responsibility guarantee period does not apply the interruption of the limitation of actions. Litigation prescription starting joint responsibility to ensure that, in the guarantee period prior to expiration, the creditor requires the guarantee, the creditor require the guarantor to perform calculation responsibilities.

Interrupt 2, the limitation of action

The interruption of prescription, the guaranty law explain the difference between the general suretyship and suretyship of joint and several liability, respectively adopts different processing methods, the general guarantee prescription for the principle of subordination, disruption of the matter which is the main debt period of limitation of action, the effect of course and guaranteed debt, that is to say, the principal debt interruption, to ensure debt is interrupted. The joint responsibility to ensure that mining prescription for independence principle, i.e. interruption during the main debt limitation, its effect is not to guarantee debt principal debt, aging is not complete, the limitation of action can still guarantee debt because the creditor fails to claim and alone. And vice versa.

Guarantee liability three, debt, debt transfer and the main contract change

1, creditor and guarantor liability

"Guarantee law" twenty-second article "the guarantee period, the creditors according to principal creditor's right to the third person, the guarantor in the original guarantee to assume responsibility for security range. Ensure the contract otherwise agreed by the parties, in accordance with the agreed "," guarantee law "provisions of article twenty-eighth" judicial interpretation of guarantee period, the creditors according to principal creditor's right to the third person, the guarantee creditor's rights transferred at the same time, all in the original guarantee range on the transferee shall bear guarantee liability. But the guarantor and creditor first agreed to assume responsibility or prohibit the transfer of creditor's rights only to specific creditors, guarantor assumes no liability of guarantee".

2, debt and liability of the guarantor

"Guarantee law" stipulates that the twenty-third "warranty period, the debtor creditor permits transfer of debt, the guarantor shall obtain written consent, the guarantor for the debts are transferred without his prior consent, no longer bear the liability of guarantee". "Guarantee law" twenty-ninth judicial interpretation stipulates: "the guarantee period, the debtor creditor permits the transfer of part of a debt without the written consent of the guarantor, the guarantor for without their consent to the transfer of the debt, no longer bear the liability of guarantee. But that is not the transfer of part of the debt shall undertake suretyship liability"

3, the main change of contract and liability of the guarantor

"Guarantee law" twenty-fourth article "the creditor and the debtor agree to alter the principal contract, they shall obtain written consent, without the written consent of the guarantor, the guarantor will not bear the liability of guarantee".

"Guarantee law" thirtieth judicial interpretation stipulates: "the period of guarantee, the creditor and the debtor, the number of the principal contract price, currency, interest rates are changing, without the guarantor agree, if reduce the debt of the debtor, guarantor shall still after the change of contract bear the guarantee liabilities; if increasing the debt of the debtor, guarantor for the increased part shall not bear the liability of guarantee. The creditor and the debtor makes a change to the main contract date, without the written consent of the guarantor, guarantee period as agreed in the contract or legal provisions. The creditor and the debtor agree to alter the main content of the contract, but not the actual performance, the guarantor shall still bear the liability of guarantee."

According to the guaranty law and the judicial interpretation of the provisions, we should pay attention to: in the main contract change, must obtain the written consent of the guarantee person, or that person may not assume responsibility for security in accordance with the law. If the sponsor does not agree to change, may cause the following consequences:

(1) if the change is necessary to the terms of the contract, that is to say, the change is to determine the rights and obligations of the parties to the main contract terms, must obtain the consent of the guarantor agreed in writing, or the guarantor shall not bear the liability of guarantee. For example, to change the use of the loans, the original is to buy building materials, later changed to buy stocks.

(2) if the change is the contract is a non essential terms, change may not be the guarantor is not equal to any effect, nature does not affect the guarantee, if the change reduces the debtor's liability, but also reduce the liability of the surety, surety undertake suretyship liability in reducing the debt range light. If the change of increase of the debtor's responsibility, for the increased part of the guarantor shall not bear the liability of guarantee, but the primary responsibility to ensure that the guarantor shall still perform.

(3) in practice, banks are changing is the deadline for performance, also is the "extension", if the extension shall be made by the consent of the guarantor, written consent, otherwise, the guarantee only in the original contract agreed period guarantee.

Third topics of subrogation and the exercise of the right to revoke the problem

In order to solve the debt problems between civil subjects, to prevent the debtor is indolent in exercising its due creditor's rights to harm the interests of creditors and debtors, restricted to evade debts and malicious transfer property, contract law established the right of subrogation and the right of revocation, as the debt preservation method, which provides a legal weapon for the new bank.

A, the right of subrogation

1 general provisions, subrogation

The provisions of the contract law, the debtor is indolent in exercising its due creditor's right, the creditor suffer, creditors may petition the people's court for subrogation right of creditor's rights of the obligor, the right of subrogation.

Bank credit business, recovery of loans is an important link, is also a problem. And the establishment of right of subrogation, creditor's rights, recovery of loans undoubtedly provides an important legal protection for bank recourse. Since the law gives creditor's right of subrogation rights, bank loans in the process also should make full use of legal provisions to realize their rights.

For example: a 1000000 yuan in bank loans, has been the repayment period, without any repayment behavior, bank after investigation, found no enforceable property to repay the debt, but to understand a multiple claims, including ethylene under a 500000 yuan, has been the repayment period, a to B traversing. But not to prosecute; C under a 300000 yuan, but not to the repayment period, 400000 yuan Ding Qianjia fails, a has Ding sued to the court for repayment, in addition, a unit of arrears of wages, work a compensation of 100000 yuan, so, banks can exercise his rights to a company the debtor claim, to recover a company owes the bank loan.

However, the bank should bring a suit of subrogation? Who to exercise the subrogation right? How to exercise?

The right of subrogation in condition 2, the exercise of the

According to the "contract law" and "explain" the Supreme People's Court on certain issues concerning the application of the contract law, the creditor brings a suit of subrogation, shall meet the following conditions:

(1) the legal claims against the debtor creditor.

This is the first condition, the right of subrogation of the creditor's rights by the secondary obligor, the agent must be legitimate. Because debt illegally, without legal protection.

(2) the debtor is indolent in exercising its due creditor's right, damage to the creditor.

This is the essential condition of the exercise of subrogation rights, its meaning refers to the debtor fails to perform its due debts to creditors, and not by the way of litigation or arbitration claim to the debtor to its due creditor's right, the creditor's due creditor's rights can not be achieved. The debtor is only to private relief rights, such as the debtor to the debtor shall call letters, also belong to the failure to exercise rights.

Failure to exercise due creditor's rights content is limited to the due rights with payment characteristics.

(3) the obligor has expired.

Because if the secondary debtor debt is not fulfilled, then the debtor shall not be entitled to the rights, no failure to exercise the right of.

(4) the obligor is not exclusive to the debtor creditor.

The creditor's right exclusively personal to the obligor refers to, and right of personality, right of identity of the debtor creditor's rights, such as the generation of maintenance, maintenance, inheritance relationship based on the payment request and labor remuneration, pensions, personal injury compensation rights.

3Subrogation, ways

If the bank is in conformity with the exercise of right of subrogation, subrogation shall be in accordance with the following requirements:

(1) the bank must be filed to the court proceedings for right of subrogation.

(2) a subrogation lawsuit defendant debtor debtor, namely the secondary debtor, and the debtor only can be classified as third people.

(3) the bank brings a suit of subrogation, by the defendant to the jurisdiction of the court, that is to say, to the court, even if the agreement jurisdiction agreement or arbitration agreement is set between the bank and the debtor, the debtor and the secondary debtor, shall be borne by the defendant in court.

4, the legal consequences of litigation for right of subrogation and the matters needing attention

(1) the scope of subrogation by the debtor's debts or the secondary obligor provided the smallest amount limit the liability of the debtor.

(2) if the debtor does not think the debtor is indolent in exercising its due creditor's right behavior, the secondary obligor shall bear the burden of proof.

(3) if the court finds the creditor's subrogation, the secondary obligor shall perform the payment obligation, and the corresponding relationship of rights and obligations between between the creditor and the debtor, the debtor and the secondary debtor is extinguished. That is to say, the creditor shall have the right to directly accept obtained by subrogation property.

(4) the necessary expenses for subrogation by the secondary obligor. In a suit of subrogation, if the obligee prevails, the litigation costs borne by the secondary obligor, and can be paid in priority from the realized claim.

Two, right of revocation

With the right of subrogation, one of the measures to save the right of revocation is debt. The provisions of the contract law, obligor renounces its due creditor's right or the free transfer of property and cause damages to the creditor, or obviously unreasonable low price to transfer property, damage to the creditor, and the assignee is aware of the situation, the obligee may request the court to revoke the debtor acts of the right, the right of revocation.

Following a typical case:

Somebody to owe the bank $1000000, due in December 1, 2004, but a failure to repay. The bank was informed that in the collection process, a the other owes its friend B 200000 yuan, in 2005 January when it expires, a be a market value of 500000 yuan commercial housing transfer to B, with 200000 yuan of loans to offset their owe B, and in 2005 February will be the name of a market value of $700000 commercial housing free transfer to a friend by name, also be a value 150000 yuan car transferred to have separate living adult son. After investigation found that a bank, in addition to the above property and the outside of the vehicle, no other available for the implementation of 1000000 yuan to repay loans property, and to be based on the relevant provisions of the contract law on the right to revoke the right to revoke the lawsuit filed, asking the court to revoke a transfer of property act.

The revocation of the right to the use of?

1, in accordance with the conditions for exercising the right of revocation

(1) the obligor renounces its due creditor's right or the free transfer of property, damage to the creditor;

(2) the debtor obviously unreasonable low price to the transfer of property, damage to the obligee, and the transferee knows the situation.

Meet the above conditions, the creditor can exercise the right of revocation, cancellation of the transfer of property of malicious behavior, in order to preserve its creditor.

Exercise 2, the right of revocation

If the bank in the process of recycling recourse debt, loan, the borrower or guarantor do encounter malicious transfers the property to escape the debt situation, the bank has the right to revoke the right to use the provisions of contract law to protect the creditor's rights. However, banks exercise the cancellation right is the following requirements:

(1) the creditor to exercise the right of revocation to preserve the creditor, must be realized through the mentioned approach revocation suit to the court.

(2) the right to revoke the defendant is malicious transfer property of the debtor, accept the transfer property of the transferee or the beneficiary may participate in the proceedings as the third column.

(3) a creditor brings a revocation of the right to litigation, should be prosecuted to the court at the domicile, the right of revocation litigation jurisdiction by the court at the domicile of the defendant.

3, exercise the right of revocation should pay attention to the problem

(1) the creditor debtor should know the cause for cancellation within 1 years all the right of revocation, since the acts of the day did not exercise the right of revocation of 5 years, the cancellation right is extinguished. Here 1 years, 5 years for the scheduled period, is not applicable provisions of litigation limitation suspension, interruption, extended.

(2) the scope of the exercise of the right of rescission is limited to the creditor's rights.

(3) the bank for its exercise the right of revocation of the payment of legal fees, travel expenses and other necessary expenses, shall be borne by the obligor.

Fourth topics other hot issues

One, borrow new also old and guarantee

Borrow new also old or loan to loan, refers to the debtor creditor banks and in the old loans outstanding cases, to sign a new loan contract, with new loans repayment of old loans behavior. Loan to loan in the current domestic financial institutions lending business is a very common phenomenon.

1, to identify the loan owing on the loan

Loan to loan refers to the financial institution and the borrower agreed to repay the old loans to new loan behavior, that financial institutions and borrowers are on loan to loan, the borrower not only to identify the objective will be the new loan repayment of old loans, and don't find out between financial institutions and borrowers have subjective to common meaning of loan owing on the loan or contact. Furthermore indispensable. From the judicial practice, the borrower repayment of old loans with new behavior is more obvious, verification of relatively simple, general dispute is very small. But to prove that between financial institutions and borrowers in the loan that common sense, is not easy. Because the meaning expressed in both not shown in an explicit way circumstances, is difficult to prove. Of course, if the loan contract with the loan, can be identified, but are generally not written, but in accordance with the following situations, it can be presumed to loan. Concrete is: (1) did not lend money, just replacing the loan documents; (2) the money in a very short time to return, such as the uplink to lend money, afternoon return; (3) the new loan is just the sum of the old loan principal and interest, the borrower in a relatively short period of time to return the old loan.

2In effect, the loan owing on the loan

The effect of loan problem in the "security law" before the introduction of judicial interpretation, is a very controversial issue, but also the financial institutions and borrowers are generally concerned about the issue, because it affects not only the effectiveness of loan principal contract issues, but also affect the validity of the guarantee contract. A kind of opinion to the people's Bank as the representative of that loan to loan is a legal behavior, according to another view, the loan is not real loan, avoiding state about a possible loan size limits, and contrary to general loans spirit, shall be regarded as invalid. This, I think, to loan of this approach has been widely used in financial institutions, if be found invalid, will increase the difficulty of financial institutions collect loans, also increases the complexity of legal relations, from the actual effect, the debtor also the old new borrowed, no adverse effect on the debtors and creditors, legal, administrative regulations have no prohibition, identified by the loan owing on the loan contract is invalid without legal basis. The guarantee law judicial interpretation of the thirty-ninth actual affirmed the valid contract for loan to loan contract.

3Loan to loan, to ensure the effect

"Guarantee law" judicial interpretation of thirty-ninth parties of the principal contract agreement with the new loan to repay the old borrowing, except when he knows or should know, the guarantor shall not bear civil liability.
New and old loans loan department of the same guarantor, does not apply to the provisions of the preceding paragraph.

(1) in the old loans and new loans have a guarantor, and the guarantor for the same people, the guarantor shall undertake suretyship liability principle.

The court has found on previous decision, before a loan contract with the new loan repayment by borrowers have the old loan guarantor, so the old loan exempt from guarantee responsibility. After a loan contract, because of the creditor and the debtor to owing on the loan agreement, guarantee issued by unknowingly guarantee, both to change the practical uses of the loan guarantee, damage the interests of the people, so that people on the new loans are also exempt from guarantee responsibility. Such a finding is not appropriate, the reason is, in the old loans and new loans is the same assurance people, because the debtor with the new loan repayment of old loans, thereby avoiding the guarantee responsibility of the old loan, the guarantor to assume the risk and responsibility only for new loans, compared to the debtor in accordance with the actual loan use of new loans to ensure people's risk and liability should be small, for example, the debtor in accordance with the actual loan use new loans, not owing on the loan, such as the funds can not be recovered, the old debt outstanding and new debt, the guarantor to bear on the old loans and new loans loans guarantee responsibility, to change the use of the loans in the loan owing on the loan guarantee, the adverse effects of very small, therefore, the guarantor whether known creditors and debtors to loan to loan, should undertake to a loan guarantee liability.

(2) no warranty or old loans with new loans in the old loan guarantee is not the same person case, the new loan guarantee if people do not know the main parties to the contract on loan to loan, should be in accordance with the provisions of insurance fraud, avoid the suretyship liability of the surety.

Because in this case the loan to loan, not only is the creditor and the debtor to loan use actual change the contract, without the consent of the guarantor agreed, and the guarantor to perform may be a dead account, which cannot be recovered, also let the guarantor provides guarantee, the guarantor obviously unfair.

(3) if the main contract is a loan, or financial institutions, the debtor can provide proof that people know the loan to loan the fact also provides the guarantee, guarantee people still have to bear the liability of guarantee.

That person does not know the loan to loan fact, generally there is a contract for the card, the contract did not write to use of the loan owing on the loan, then prove that people know the responsibilities for creditors and debtors, the consultation records, meeting minutes, three party signature situation can be used as evidence.

Two legal issues, the bankruptcy of the enterprise

1The bankruptcy of the debtor

The debtor bankrupt creditor's rights, regardless of whether maturity, the bank as a creditor shall declare their claims to the liquidation group according to the time limit specified by the court, to attend the creditors' meeting, the Declaration on the other creditor's rights and bankruptcy property investigation and inquiry, examined and approved credit allocation scheme, make every effort to safeguard their legitimate rights and interests. According to the specific circumstances of the case, decide whether or not to approve the bankruptcy reconciliation and reorganization.

The bankruptcy of the debtor does not affect the guarantee. The bank can declare the creditor's right, can also request the guarantor to pay. Banks in bankruptcy procedure possible future slice, not in advance of the guarantor shall bear guarantee liability of deduction, the court review creditor against the guarantor of the case does not consider creditors will get much property distribution, but the creditor has been part of the bankruptcy distribution, should promptly explain to the court, in order to facilitate the Court on the the guarantor's decision be reduced, avoid the repeated refusal.

If the creditor does not declare the creditor's rights, the guaranty law provisions creditors notice guarantor obligation, the guarantor may exercise the right of recourse against the prior notice, if the creditor does not guarantee, the creditor shall bear the guarantee risk disclaimer.

Article forty-fourth judicial interpretation of Guarantee Law The guarantee period, the people's court to accept the bankruptcy case, the creditor can declare creditor's rights to the people's court, also can be to guarantee rights advocate.
Creditors to file claims in the bankruptcy procedure after the unpaid portion, the guarantor shall still bear the liability of guarantee. The demand that the surety undertake suretyship liability in bankruptcy proceedings, shall, within six months from the termination.
　　Article forty-fifth The creditor knows or should know that the bankruptcy of the debtor, neither to declare the creditor's rights also fails to notify the surety, the surety can not pre recourse, guarantee people in the scope of the creditor may claim in bankruptcy procedure is exempt from guarantee responsibility.

2, the guarantor bankruptcy

In the theoretical disputes, the judicial interpretation of the provisions of the bankruptcy law, the guarantee legal documents before the declaration of bankruptcy has been determined by the effective guarantee responsibility, can be used as bankruptcy claims

3, the mortgages secured creditor, provided the mortgaged property may be the debtor, the debtor can also is the third person outside, to provide mortgage property mortgage bankruptcy, mortgage property shall not be bankrupt creditor's rights, the creditor may priority. However, if the bankrupt state-owned enterprises into national policy of annexation and bankruptcy plan, the auction or sale shall be used to give priority to the relocation of enterprises the use right of state-owned land, the remaining will be priority.

Legal problems related to fifth topics in the collection

A collection of objects

1, the collection object refers to the bank as a creditor to use legal means to recover the loan has to repay the loan debt obligations. The borrower may be an enterprise as a legal person, other economic organization or individual. The loan credit review, usually before granting loans work, and the establishment of the subject of the collection object, is the key must grasp the recovery of loans before.

2, borrowers from borrowing to collect objects during the.

Using legal means to collect time generally have one, two years or longer from the loan contract signed by. The borrower will change a lot of main body in such a long period of time, such as merger, merger, division, went out of business, revocation, revocation, such as bankruptcy. In the bank to collect loans, the collection object is not necessarily the original borrower, change the development for land clearance work is very important.

3, the collection object form of liability

(1) Company Limited (including the Limited by Share Ltd, limited liability company, a wholly state-owned company)

Company is liable for its debts with all its property. Shareholders of a company with limited liability subscribed capital contributions shall be responsible for the company; shareholders of the Limited by Share Ltd to the subscription of shares shall be responsible for the company. A wholly state-owned company to the state authorized the operation and management of the property shall bear civil liability.

(2) non corporate

Non corporate with all its property is liable for the debts

(3) other economic organizations

Other economic organizations do not have the qualifications of a legal person, cannot bear civil liability according to law, and its civil liabilities shall be borne by the legal person enterprises. In practice, is generally the first to pay off the debts of the economic organization of property, if not enough to pay off, by the legal person enterprises assume responsibility.

(4) the partnership

Partnership debt each partner shall bear unlimited joint and several liability.

(5) individual citizens

Personal debt repayment by all their personal property, bankruptcy law does not regulate bankruptcy of natural person.

Two, the establishment of subject of litigation

1, it is called collective individual enterprises processing.

It is called collective individual enterprises, mainly in the so-called false effectively, collective, private business. Such enterprises should be considered clear debt subject to affiliated enterprises and individual business operators for the co defendant, establishment is the key evidence, including link protocol, the source of funds, risk and profit sharing method.

Branches 2, enterprise

Does not have the solvency, legal person to run as a joint defendant

The civil liability of false legal bear, 3

False Corporation is a practice of the more intractable problems, a lot of enterprises, from the industrial and commercial registration, perfectly legal, the annual inspection, and even set up more than ten years, but if the four elements of legal person established according to law, ( necessary property or funds, has its own name, organization and location ; able to independently bear civil liability) to analysis, especially the registered capital requirements of key, the possible existence of dishonest registered funds or not registered funds, how to open this false the veil of the Corporation, is the need for a lot of evidence.

(1) the registered capital, the open unit of negative liability;

Enterprises have registered capital in its registered capital, but far from the minimum registered capital of statutory, in this case, it simply does not have the qualifications of a legal person, which operate unit shall bear full responsibility.

(2) the inadequately registered capital or withdrawing, its operating units to assume responsibility in the range of false and withdrawing in.

4, institutions run by the enterprise after termination of the treatment;

From the open unit take the responsibility of liquidation

5, enterprise division, after the merger of the civil liability

The separation of the enterprise if the agreement subject to claims and debts, the bank agreed to, as agreed to. If there is no agreement, the divided enterprise shall bear joint and several liability.

After the merger of enterprises should assume the responsibility of enterprises merger before.

6, the civil liability of parent company and subsidiary company

Often appear in the practice of the parent company loans and foreign investment to set up one or more sub company, the subsidiary company has the qualification of independent legal entities, the parent company into a shell company.

(1) the provisions of the company law before, foreign investment shall not exceed its own 50% of assets, provisions of the company law, foreign investment shall not exceed the prescribed in the articles of association limit, can be used as legal basis, asked to confirm its investment is invalid, the equity to debt, the subsidiary company.

(2) for transferring loan malicious escape debt evidence, the parent company as a joint defendant, by the company shall bear joint and several liability in the scope of acceptance within the free loan.

(3) to perform the parent company in the subsidiary's equity.

7 the legal responsibility, enterprises in the acquisition of

(1) the transfer of property acquisition debt must be agreed in writing by the creditor banks, otherwise invalid.

(2) the acquisition of enterprises shall be borne by the acquisition of enterprises bear the original bank debt.

8, enterprise business, revocation, revocation, cancellation and bankruptcy process litigation subject and problems

(1) the Bureau of industry and commerce is not cancelled or the court has not declared bankrupt according to law, revocation, revocation, the business case in the enterprise, but did not eliminate the law, still have the subject qualification, which belongs to the clearing corporation. In charge of the enterprise legal person as the subject of liquidation liquidation responsibility, for enterprise units or shareholders, can become the subject of litigation.

The Supreme People's Court on the corporate business license was revoked after function method, how to determine the status of the civil litigation[2000]24No.

The Liaoning Provincial Higher People's court:
Your school "on the business license is revoked, its legal status to determine how the request" received. Through research, the following reply:
Revoke the business license of enterprise legal person, is the administration of industry and commerce according to an administrative punishment regulations of the State Administration of industry and Commerce made illegal enterprise legal person. Corporate business license is revoked, shall conduct liquidation according to law, the liquidation procedure over and handle the cancellation of business registration, the enterprise legal person perish. Therefore, an enterprise as a legal person after being revoked the business license to be prior to the cancellation of registration, the enterprise legal person should still be considered to exist, can be their own name for action. If the corporate members One's whereabouts is a mystery., unable to inform the creditors to participate in the litigation, to revoke the business license of enterprise start-up unit for the prosecution, the people's court shall also be permitted. The open unit legal person to revoke the business license of the enterprise, if there is no shortage of investment or transfer of assets to avoid debt situation, should only to participate in the litigation as a liquidation of the enterprise, take the responsibility of liquidation. Your request of the issues involved in, can be handled with reference to the above spirit.
This complex.

Two in 2000 to January 29th

(2) without liquidation is cancelled, the open unit or shareholders to take responsibility for the defendant.

(3) the enterprise bankruptcy filing in accordance with the procedure of bankruptcy, the debt.

Three, the collection methods and key points in operation

1, negotiation, conciliation

2, the administrative departments of mediation

3, for an order of payment

The object is relatively strong company, enterprise assets. For an order of payment of the cost of litigation fees for accepting 1/3.

The Civil Procedure Law

Article 189thThe creditors request the debtor pays the money, securities, with the following conditions, may apply to the basic people's court that has jurisdiction for an order of payment:
(a) no other debt disputes between the creditor and the debtor;
(two) the order of payment can be served on the debtor.
The application shall clearly state the requested amount of money or securities quantity and the facts, evidence.
　　Article 190thThe application of the creditor, the people's court shall within five days inform the creditor whether or not to accept the.
　　Article 191stThe people's court after the acceptance of the application, in fact, the evidence provided by the creditor of the review, creditor, legitimate, should be taken from the date of payment to the debtor issued within fifteen days; the application is not established, ruling rejected.
The debtor shall be paid from the date of liquidation of the debt within fifteen days from receipt, or submit a written objection to the people's court.
Objection nor complied with the order of payment does not put forward to the debtor in the provisions of the preceding paragraph, the creditor may apply to the people's court for enforcement.
　　Article 192ndThe people's court received a written objection submitted by the debtor, shall decide to terminate the procedure, shall automatically cease to be in force, the creditor can sue.

4, apply for declaration of bankruptcy

According to the provisions of the bankruptcy law article second, article seventh, if the enterprise as a legal person is unable to repay debts, creditors can be presented to the people's court for bankruptcy liquidation.

Article second of bankruptcy lawAn enterprise as a legal person is unable to repay debts, and its assets are insufficient to pay off all the debts or the apparent lack of liquidity, according to the provisions of this law to clear the debt.
An enterprise as a legal person as prescribed in the preceding paragraph, or a significant loss of liquidity, shall be reorganized in accordance with the provisions of this law.

Article seventhThe debtor is the second article of the cases, can be proposed reorganization, reconciliation or to apply for bankruptcy to the people's court.
The debtor is unable to repay debts, creditors can be proposed reorganization or bankruptcy liquidation of the debtor's application to the people's court.
An enterprise as a legal person is dissolved but has not been liquidated or unliquidated completed, assets are insufficient to pay off the debts, the person liable for liquidation shall apply to the people's court for bankruptcy liquidation.

Article tenthCreditors filed for bankruptcy, the people's court shall notify the debtor within five days from the date of receiving the application. The debtor has any objection to the request of the people's court shall, within seven days from the date of the notice of the people's court. The people's court shall decide whether or not to accept the application within ten days from the date of expiration of the term of dissent.
In other circumstances, the people's court shall decide whether or not to accept the application within fifteen days from the date of receipt of the application for bankruptcy.
There are special circumstances need to extend the provisions of the preceding two paragraphs ruled that the admissibility of time limit, the approval of the people's court at the next higher level, be extended for fifteen days.

Article eleventhThe people's court accepted the bankruptcy petition, it shall serve it to the applicant within five days after the decision is made.
The application of the creditor, the people's court shall be served to the debtor within five days after the decision is made. The debtor shall, within fifteen days after the decision is served, submit to the people's court property status, a detailed list of debts, creditor's rights, relevant financial and accounting reports and payment of the employees' salary and social insurance fee payment.

Article thirteenthThe people's court decides to accept an application for bankruptcy, it shall also specify the manager

5, the general procedure

6, the deduction method

Four, action time and action entity right of disposal

1, action time should choose in the borrower repayment capacity after having, in that it does not have repayment ability or bankruptcy near the state of litigation is no substantive significance.

2, to have credibility, have the development potential, the real market enterprises can give a buffer period, to keep debt pressure, delayed by means of litigation, necessary for its bankruptcy means

3, the right to apply for a default.

"Contract law" provisions were made on the system of expectations, namely the debtor in the debt before the expiration of the term, because of its clear or its behavior that does not fulfill the contract is confirmed, the creditor may claim responsibility of breach of contract in advance to the debtor.

According to the regulations, banks in the loan before the expiration of the time limit, can according to the operation condition, business reputation and so on, the judgment debtor can repay their debts. Jiang measures to the early claim responsibility of breach of contract.

For example, a bank lending 2000000 yuan to an enterprise, the loan period of 1 years, but in loans after two months, the legal representative of the enterprise human resources director suddenly disappeared, also disappear without a trace, the production and operation of the company into chaos, some workers want to plunder property against the top wage. In this case, if the bank loans due to wait until after the claim, the consequences will be unbearable to contemplate, banks can according to the rules of anticipatory breach of contract for property preservation, through litigation supplementary loan.