The development of the construction project guarantee market in Xiamen is relatively stable, but there are also some problems, mainly in the guarantee system, market subjects, guarantee institutions and executive authorities. In view of these problems, this paper draws lessons from the practices of other cities and puts forward the improvement measures in the future.
Xiamen 1 Project Guarantee Analysis
1. 1 Project Guarantee Status
It is understood that at present, only Xiamen officially implements the professional guarantee company system. In order to further standardize the main behavior of the construction market, reduce the project risk, safeguard the legitimate rights and interests of all parties, and ensure the smooth progress of the project construction activities, Xiamen Construction Bureau formulated the "Implementation Measures of Xiamen Construction Project Guarantee (Trial)" in 2008. Since the implementation of this method for many years, the construction project guarantee market in Xiamen has developed steadily, but there are also some problems. Due to various reasons, there have been five disputes over the claim for guarantee so far, which makes the project guarantee management put forward higher requirements for the competent authorities.
1.2 project guarantee type
[1] At present, there are three types of project guarantees in Xiamen: owner's payment guarantee, contractor's performance guarantee and contractor's advance payment guarantee. Previously, the contractor's low-price risk guarantee has been cancelled. According to the validity period of the letter of guarantee, it can be divided into two types: open type and limited type, each with different characteristics. The letter of guarantee issued is valid for a long time until the project is completed, which saves the trouble of renewing the guarantee. However, if the project has not been completed, the guarantee cannot be retrieved. If the limited warranty expires and the project is still not completed, it needs to be renewed to achieve the purpose of ensuring the project.
1.3 Project Guarantee Target
[1] Simply put, banks and professional guarantee companies. According to the regulations, the guarantor of the project guarantee shall be a financial institution established in People's Republic of China (PRC) according to law and licensed by the banking regulatory institution to carry out the guarantee business, and a professional guarantee institution with guarantee as its main business scope and main business, registered in accordance with the law, and filed with the municipal construction administrative department. 20 17 Xiamen Pilot Free Trade Zone has adopted a new guarantee method, namely the guarantee insurance system. According to Document No.6 of Xiamen Free Trade Commission [2017], for the construction projects in the Pilot Free Trade Zone, the construction enterprises can pay the performance bond of the construction contract in any form such as cash, bank guarantee or guarantee insurance. In the form of guarantee such as guarantee insurance, bank guarantee or guarantee, it has the same effect as cash deposit guarantee.
1.4 letter of guarantee issued by banks and guarantee companies
According to the statistical chart of the guarantee system data of the competent construction department, as shown in figure 1, it can be seen from figure 1 that the amount of guarantee issued by professional guarantee companies is higher than that of banks. There are different problems between banking financial institutions and professional guarantee companies in the process of engaging in engineering guarantee business. Banking financial institutions are well funded, but lack professional knowledge in the field of construction. Although professional guarantee companies have certain professional knowledge, their financial strength is greatly reduced. Since the implementation of project guarantee in Xiamen for more than ten years, there have been five cases of guarantee claim disputes in * * *, all of which are caused by the problems of guarantee companies. Among them, the payment of guarantee compensation by the owner occurred in 20 1 1 and 20 13 respectively. In two cases, 20 14 and 20 17, the legal representative of the guarantee company had the problem of private lending, which led to the freezing of the project guarantee deposit by the court. One is that the guarantee company refuses to perform the guarantee compensation obligation. As the competent department of construction, actively cooperate with the beneficiary of the letter of guarantee to interview the guarantor, negotiate with the guarantee company to perform its duties, and strive to finally reach a compensation agreement, so that the project letter of guarantee can really play its role and develop in a virtuous circle.
2 Xiamen project guarantee problems
(1) Some market participants have insufficient understanding of the necessity and importance of the project guarantee system [2]. Construction units often think that the project guarantee letter is just a preliminary procedure they have to go through in order to obtain the construction permit. Even if there is a construction contract dispute, they are unwilling or don't know how to protect their legitimate rights and interests by claiming compensation from the guarantor, and even mistakenly believe that the implementation of the project guarantee will increase the construction cost, and the enthusiasm for implementing the project guarantee system is not high.
(2) The legal system of engineering guarantee is not perfect [2]. China has successively promulgated the Construction Law, the Guarantee Law, the Contract Law, and the Ministry of Construction's Provisions on Implementing Construction Project Contract Guarantee in Real Estate Development Projects (for Trial Implementation), but there is still a lack of legal support in project implementation. For example, on 20 15, a guarantee company refused to perform its guarantee compensation obligations.
(3) How to solve the guarantee expiration. Since 2006, the competent authorities have kept hundreds of expired letters of guarantee. For the expired letter of guarantee, the management department has repeatedly urged the guarantor to take it away or renew it (in the case of unfinished projects), but in fact the effect is not great. According to the regulations, when the guaranteed enterprise issues a project guarantee to a professional guarantee company, it must pay a certain proportion of cash (that is, the guarantee deposit) to the special account of the project guarantee deposit opened by the professional guarantee company in the state-owned commercial bank as a counter-guarantee measure, which leads to the long-term retention of the project guarantee deposit in the account of the guarantee company or bank, and at least the original guarantee deposit cannot be retrieved until the project is completed and settled, and the deposit can be paid. Even the guaranteed enterprises have forgotten the deposit and have not paid it back for many years. In addition, it occupies the guarantee amount of the guarantee company, which makes it unable to undertake more guarantee business, the database of the dynamic supervision system cannot be updated, and the role of the supervision system has not been fully exerted.
(4) Withdrawal of professional guarantee companies. Since the implementation of project guarantee, eight professional guarantee companies have successively withdrawn from the project guarantee industry, and after their withdrawal, they still have guarantee money, guarantee deposit, risk reserve and even real estate mortgage. However, the follow-up service ability and guarantee ability of guarantee companies can not be guaranteed, and even some companies have closed down, and no managers can be found, leaving no one responsible for solving the remaining problems. In order to safeguard the interests of the guarantor and ensure the security of the project deposit, the management department protects the rights and interests of all parties to the maximum extent, implements simple surrender procedures, returns the guarantor's deposit according to the application, ensures the guarantor to get back the project deposit in time and reduces losses. However, after the letter of guarantee is returned, the project under construction is in the state of no letter of guarantee. If both parties to the contract have no legal awareness and continue to find other guarantee agencies to issue new letters of guarantee, they can only fulfill the contract agreement with the promises of both parties, which may lead to risks in the performance of subsequent projects.
(5) the problem of industry executives. The project guarantee business is just one of the many businesses of the guarantee company. Guarantee companies often affect the normal operation of enterprises because of other businesses, thus endangering the project guarantee business, and even the project guarantee deposit and risk reserve are frozen and deducted by the court, affecting the interests of guarantors and beneficiaries. The competent department of a professional guarantee company is the Finance Office, and the competent department of engineering construction is a layman in this kind of industry. The supervision means for financing guarantee companies are limited, so it is difficult to grasp the operation of guarantee companies in time and realize real-time supervision.
(6) Legal definition of project bond. When the construction unit and the construction unit entrust a professional guarantee company to issue a project guarantee, the professional guarantee company will require the guaranteed enterprise to pay a certain proportion of cash as a counter-guarantee measure, and Xiamen has also established a deposit account management system. However, in practice, if a professional guarantee company is involved in economic disputes, some courts will seal up and deduct the project guarantee deposit as the professional guarantee company's own funds, thus affecting the rights and interests of the guarantor. For example, in a financing guarantee company, the project guarantee deposit account supervised by the company, the custodian bank and the municipal cost station was frozen by the court and part of the funds were deducted due to the broken capital chain of the company's legal representative.
3. Learn from the experiences and practices of other cities in China.
(1) Shenzhen Project Guarantee After investigation, the construction administrative department of Shenzhen Municipality has cancelled the mandatory nature of the project guarantee, and it is up to the owner to decide whether to issue the project guarantee. Market regulation replaces government supervision, and the construction administrative department no longer manages the project guarantee. For government investment and financing projects, the bank will issue the contractor's performance guarantee, and the owner will be responsible. The guarantee company provides re-guarantee in the process of issuing bank guarantee by the guarantor and continues to play the role of guarantee. This practice releases the financial pressure of enterprises, enhances the vitality of the construction market, is the choice of both parties to the contract, and makes the industry market-oriented. Both parties to the contract are responsible for this. In case of breach of contract, disputes can be resolved through legal means, which is helpful to promote the construction of a society ruled by law and cultivate the habit and consciousness of enterprises to consciously abide by laws and regulations and resolve disputes through legal or judicial procedures. (2) The current project guarantee situation in Ningbo. There are three kinds of engineering guarantees in Ningbo: cash, bank guarantee and insurance. The professional guarantee company system has not been introduced. At present, the comprehensive engineering insurance led by the Financial Office and the Insurance Regulatory Bureau is being actively promoted, and it is the first to implement the pilot project in China.
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