"100 Questions on the Legal Practice of Financial Guarantees" consists of 100 questions and answers related to the legal practice of financial guarantees, and the questions included are all common and difficult problems in the legal practice of financial guarantees and the questions that the author really encounters in the course of his work as a lawyer. The author answers the above questions one by one in accordance with the Civil Code and the latest laws and regulations in the field of financial law. The second edition has been updated on the basis of the first edition, and in line with the development of financing guarantee practice, the original issues have been selected and updated, so that the content is more in line with the current practical work and more practical.
For operators, in addition to mastering and proficiently using various financial instruments, it is also necessary to carefully study relevant laws, regulations and regulatory policy trends to prevent legal risks. As one of the earliest legal professionals involved in the financing guarantee industry, the author of this article has been engaged in the legal services and practice of the financing guarantee industry for many years, and continues to pay attention to and follow up on relevant laws and policy trends in a timely manner. This book is carried out in the form of questions and answers, which has strong practicality and pertinence, and hopes to have some reference for the industry.
—— Ye Xiaohang
(Former Chairman of Guangdong Provincial Guarantee Expert Committee, Former Chairman of Shenzhen SME Credit Guarantee Center Co., Ltd.)
About the author
Jin Zhenchao, graduated from Peking University Law School with a master's degree in civil and commercial law, and is currently a lawyer and senior partner of Guangdong Zhuojian Law Firm, and the leader of Jincheng's lawyer team.
directory
Chapter 1 Business Compliance
Q1 What is a financing guarantee company?
Q2 What are the conditions and procedures for the establishment of a financing guarantee company?
Q3 What is the business scope of the financing guarantee company?
Q4 What is a re-guarantee?
Q5 Can a financing guarantee company operate across provinces?
Q6 How should a financing guarantee company make provision for guarantee compensation?
Q7 What fees can a financing guarantee company charge to a customer?
Q8 What are the operating rules for financing guarantee companies?
Q9 What are the main contents of the four supporting systems of the Regulations on the Supervision and Administration of Financing Guarantee Companies?
Q10 What is the impact of the Measures for the Management of Asset Ratio of Financing Guarantee Companies on the entrusted loan business of guarantee companies?
Q11 What is the Financing Guarantee Fund?
Q12 What are the risks of the financing guarantee fund to carry out equity investment business?
Q13 Can a financial leasing company engage in financing guarantee business?
Q14 How to apply for the establishment of a microfinance company?
Q15 What is the main contract of the counter-guarantee contract?
Q16 Is the non-local loan of a microfinance company compliant?
Q17 Can a microfinance company engage in bill discounting business?
Q18 How is the interest rate cap of a microfinance company determined?
Q19 How to complete the delivery of equipment and prevent risks in the sale-leaseback business?
Part 2 Guarantee
Q20 What is the impact of the Independent Guarantee Provisions on the financing guarantee industry?
Q21 Can a guarantee company apply to the court to suspend payment under an independent guarantee?
Q22 Can a counter-guarantee be a stand-alone letter of guarantee on demand?
Q23 What is the relationship between the guarantee period and the statute of limitations?
Q24 What is the impact of the new statute of limitations on the guarantee period?
Q25 Now that the general statute of limitations has become 3 years, can the guarantee period be agreed to be 3 years?
Q26 Under what circumstances can a guarantor refuse to bear the guarantee liability?
Question 27 Will asserting rights against one of the joint and several liability guarantees of multiple persons lead to the interruption of the statute of limitations against the other guarantors?
Q28 Does the guarantor have recourse against the detached letter of guarantee?
Q29 What should be done with a joint guarantee that does not have a prior agreement on the share of liability?
Q30 Can the guarantee company exercise the recovery in advance in the auction real estate guarantee business?
Question 31: Can the main contract and the subordinate contract provide for litigation and arbitration separately, and can they sue the court together?
Q32 Is there a guarantee contract in which the main contract is a cooperation framework agreement?
Q33 What kind of liability does the guarantor bear if the guarantee is provided with equity as stipulated in the joint and several liability guarantee?
Q34 What are the risks of debt repayment before the people's court accepts the debtor's bankruptcy application?
Q35 When a borrower is on the verge of bankruptcy, how should the guarantor respond?
Q36 What are the legal risks of exempting some guarantors from liability or suing only some of them?
Q37 Can the borrower temporarily withhold the joint and several liability guarantor after defaulting?
Q38 What are the difficulties and ways out for financing guarantee companies to carry out litigation preservation guarantee business?
Q39 Is the guarantee contract involving "foreign guarantee and domestic loan" valid?
Q40 What is a letter of commitment to pay the difference and what is its legal effect?
Q41 What are the changes in the requirements of the Civil Code on the company's external guarantee?
Q42 Is the company's external guarantee valid without a resolution of the shareholders' meeting?
Q43 Which guarantees of listed companies are subject to the approval of the general meeting of shareholders?
Q44 Can a creditor require the company to bear the guarantee liability solely on the basis of the resolution of the shareholders' meeting?
Question 45 After the guarantor compensates, can the guarantor directly apply for enforcement against the debtor without going through a lawsuit?
Q46 How to prevent and control legal risks in the project guarantee business?
Q47 What are the common reasons for a construction guarantee claim?
Q48 How should the period of counter-guarantee be agreed?
Q49 What are the key points and precautions for reviewing the text of the project guarantee?
Chapter 3 Mortgage
Q50 What are the risks of the collateral being seized by the criminal authorities?
Q51 Can a settlement between the creditor and the mortgagor lead to a reduction of the guarantor's liability?
Question 52 What should I do if the mortgaged property is sold for the second time and the sale is not completed?
Question 53 What is the order of distribution among the mortgagee, the priority recipient of the construction project, and the applicant for the first round of seizure?
Q54 Can the mortgagee and the creditor not be the same person?
Question 55: What should I do if the collateral is seized by another court?
Q56 First, how should the issue of the order of repayment be dealt with between the attachment party and the preferential creditor?
Q57 Is it necessary to register the mortgage change when the entrusted loan is extended?
Q58 Can a property buyer settle a debt on his behalf to release the mortgage registration?
Q59 What legal issues need to be paid attention to when transferring the main creditor's right and the mortgage right together?
Q60 How to exercise the mortgage right by "free-riding"?
Q61 Is the mortgage on property provided by the mortgagor without the consent of the spouse valid?
Q62 How does the guarantee company choose the timing of compensation?
Question 63 Can mining rights be mortgaged and how is the mortgage right established?
Question 64 How to prevent the legal risk of being unable to handle mortgage registration due to reasons attributable to the registration department?
Q65 After the debtor defaults, can the mortgagee tow the mortgaged vehicle on his own?
Question 66: What is "transfer with mortgage" and what is the impact on the financial guarantee industry?
Chapter 4 Pledge
Q67 Does the listing of a company after the equity pledge affect the effectiveness of the equity pledge?
Q68 Is there a legal obstacle to the enforcement of "restricted shares"?
Question 69 How does the pledgee exercise the pledge in the case of a bill pledge loan?
Q70 How to establish and release the pledge of bills?
Question 71 In the exercise of the pledge of negotiable instruments, can the underlying contract dispute and the negotiable instrument dispute be combined for trial?
Q72 Does the failure to issue a notice of recourse in the electronic commercial draft system affect the right of recourse for bills?
Question 73 What kind of liability should the pledgor bear if the pledge is not registered?
Q74 What are the amendments and precautions of the Measures for the Unified Registration of Security for Movable Assets and Rights?
Question 75: What are the contents of the registration of pledge of accounts receivable, and what is the effect?
Q76 What should the supervisor pay attention to in the "liquid pledge"?
Q77 Does the realization of the pledge of accounts receivable have to be auctioned or sold?
Q78 What is account pledge and what are the legal risks?
Question 79: Can the car certificate be pledged, and what are the legal risks?
Chapter 5 Loans
Q80 Under what circumstances can a lender declare a loan due early?
Question 81: Is the termination of the contract necessary for early loan collection?
Q82 Will the interest received in advance of the microcredit project be recognized as the pre-deduction of interest?
Question 83 Can a private lending dispute without an agreement on a competent court be sued at the place where the plaintiff is domiciled?
Q84 What are the risks of early or individual liquidation before the debtor goes bankrupt?
Question 85 Can the people's court freeze or allocate the pension and housing provident fund of the person subject to enforcement?
Q86 What is pending seizure and what is its legal effect?
Question 87: What is pre-seizure and what is its legal effect?
Q88 How to choose a lawyer in the process of debt recovery?
Question 89 How to apply for property clue search and property preservation in the process of debt recovery?
Question 90: Can I still apply to the court for enforcement after the time limit for applying for enforcement?
Question 91 Can the only house in the name of the person subject to enforcement be enforced?
Q92: Can a company act as a lender to private loans?
Q93 What are the legal risks of recurring lending?
Chapter 6 Comprehensive
Q94 What is the impact of the Civil Code on the financial leasing industry?
Q95 What is the impact of the Civil Code on factoring?
Q96 What is the impact of the Civil Code on the insurance industry, and how should it be dealt with?
Question 97: How should private equity funds respond after the "thunderstorm"?
Q98 What is the impact of the Shenzhen Special Economic Zone Personal Bankruptcy Regulations on financial institutions?
Question 99: How do you view the trend of "routine loans" and private financial supervision?
Q100 What are the suitability obligations for the protection of the rights and interests of financial consumers?