China CBRC office on the loans of commercial banks to transfer the legal effect of relevant issues concerning the social investors

Banking does hair [2009]24No.

The banking regulatory bureau of guangdong:

Your bureau "on the commercial bank will request the creditor's right to issues related to personal" (Guangdong newspaper [the2009]5Receipt No.). Through the research, the relevant issues are hereby reply as follows:

One, to the commercial bank transfer to the social investor loans without prohibitive provisions, transfer contract with the effectiveness of contract law. The social investor is a natural person, financial institutions outside the legal person or other organization.

Two, the transfer of the creditor's rights, the creditor will contract belongs to the transfer of rights to the third person, not as the community does not target specific loans business activities, does not involve the qualification problem in the business of lending, the Assignee does not have engaged in the lending business qualifications.

Three, commercial bank loans to the society transferred to investors, shall establish a risk management system, internal control system and other relevant systems and internal procedures for approval.

Four, commercial bank loans to the society transferred to investors, shall take the auction open form, to form a fair price, accept social supervision.

Five, commercial bank loans to the society transferred to investors, shall be submitted to the CBRC or its dispatched office report, accept the supervision and inspection supervision department.

                            Two thousand and nine years in February 5th
Note appended.

The bank creditor's rights transfer related legal issues summary 

 

One, the relevant provisions 
1, the people's Bank "China about commercial bank loans under the contract of assignment of the creditor's right relating to issues concerning" (silver Banhan (2001) No. 648)

    In July 30, 2001, the people's Bank of the people's Bank of Shanghai branch of China for Chinese "on the commercial bank loan contract creditor's right to non bank financial institutions behavior is appropriate for" to "General Office of the people's Bank Chinese about commercial bank under the loan contract, the transfer of the right of reply debt" problem: "by the loan and the formation of the creditor's rights and other rights can be transferred between financial institutions qualified for loan business. Without permission, no commercial bank may its creditor's right to non financial enterprises."
Reply 2, the Supreme People's court "of enterprise loan contract the borrower fails to repay the loan should be how to deal with the issue of"
3, March 30, 2009, the Supreme People's court "on the trial of cases involving bad financial creditor's right transfer seminar"
Rule tenth: "financial Asset Management Co transfer has been involved in litigation, enforcement or bankruptcy procedures of bad creditor's rights, the people's court shall, according to the creditor's rights transfer contract and the request of the assignee or transferee of the rule changes, the litigation or enforcement."

  Article eleventh stipulates: "the state owned banks to financial Asset Management Co transfers of bad debt, or financial Asset Management Co the bad creditor's rights, the creditor's rights transfer way to dispose of bad assets, can apply the" provisions on some issues of applicable law cases concerning financial Asset Management Co acquisition, management, disposal of non-performing loans of state-owned banks in the formation of assets. "."
In accordance with the "Regulations", "meeting minutes" and other relevant provisions, banks generally first assignment for financial Asset Management Co, the transferee bank debt and then by assignment of creditor's right or as a whole package of assets in the form of creditor's rights transfer to non bank financial institutions.
4, the Shanghai Municipal Higher People's Court on some issues concerning the trial "is related to the creditor's rights transfer dispute case answer" eighth stipulates: "the right to enjoy the people's court documents confirm creditor's rights, and the creditor's rights to be transferred, as long as the creditor does not belong to the contract law the seventy-ninth regulation situation, effect shall approve the transfer of creditor's rights the. By the relevant people's court after, assignee of judgment documents to the debtor to creditor claims." The clear even bank creditor's rights, as long as the creditor does not belong to the "contract law" article seventy-ninth exceptions, you can transfer.
5, "the Hunan Provincial Higher People's Court on the trial involving bank non-performing financial assets transfer dispute guidance" second stipulates: "the trial and execution, creditor's rights main body produces change, the assignee for the change of litigation or subjects of execution, the people's court shall permit."
6,China CBRC office "on the legal effect of commercial bank loans to investors to transfer social issues related to reply" (the office [2009]24) clear the following questions:
First, banks transfer mandatory claim does not belong to violate the laws, administrative regulations, shall be deemed valid contract. Second, commercial banks can use loan creditor's right to natural person, other organizations, and financial institutions and non-financial institutions. Third, the transfer of specific loan creditor's behavior belongs to the creditor will contract to transfer the third person, not loans to the society does not object specific business activities, does not involve the qualification problem in the business of lending, the body need not have engaged in the lending business qualifications. At the same time, the behavior is not an evasion "non financial enterprises shall not be lent" behavior. Fourth, the commercial banks to the social investors transfer loans must practice: to establish risk management system, internal control system and other relevant systems and internal approval procedures; to the transfer of the creditor's rights, shall take the auction open form, to form a fair price, accept social supervision; transfer of creditor's right, shall submit to the China Banking Regulatory Commission or agencies report, accept the supervision and inspection supervision department.