I. Legal risks existing in the current business of the guarantee company
The guarantee risk existing in the business of guarantee companies is mainly the possibility of loss of the guarantee subject, which can be divided into systematic risk and random risk. Systematic risk is the risk caused by the changes in the credit environment, legal environment and policy environment of the whole society, which cannot be solved by the guarantee institutions themselves. Random risk is the risk of guarantee institutions and guarantee business itself. Risk management can effectively prevent and resolve such risks and reduce unnecessary risk losses. For guarantee companies, the most common random risk is the credit risk of enterprises, also known as compensatory risk, which refers to the risk of losses caused by the debtor's inability or unwillingness to repay.
Second, some measures taken by guarantee companies to guard against compensatory risks.
In view of the above risks, the guarantee company must take active measures to avoid risks, and cannot passively wait for the risks to occur before doing the work. How can guarantee companies take the initiative to guard against such risks? The author thinks that the work can be carried out from the following aspects.
1. Establishing Re-guarantee
Re-guarantee is the guarantee of guarantee, that is, the re-guarantee institution re-guarantees or forcibly re-guarantees the guarantee risks already undertaken by the guarantee institution according to a certain proportion, so as to disperse and transfer the guaranteed risks. Re-guarantee mechanism is an important way to disperse and transfer the guaranteed risks in the guarantee system.
2. Establish counter-guarantee.
If the borrower applies for a guarantee from the guarantee company, the guarantee company requires the borrower to provide a counter-guarantee. According to Article 4 of the Guarantee Law of People's Republic of China (PRC), "when a third party provides a guarantee for the debtor to the creditor, it may require the debtor to provide a counter-guarantee." Counter-guarantee means that according to the prior agreement between the guarantor and the debtor, if the debtor fails to perform the debt, the guarantor can directly obtain performance or economic compensation from the counter-guarantee measures provided by the debtor in advance without litigation or arbitration procedures, thus dispersing part of the credit risk to the debtor and reducing the risk coefficient of the guarantee institution. The guarantee company may, according to the actual situation of the enterprise and the project, take one or more guarantee measures for the enterprise that has been approved for guarantee. Counter-guarantee generally adopts the following four forms:
(1) Provide counter-guarantee in the form of deposit. Margin refers to the funds handed over to the guarantor after the entrustment guarantee contract comes into effect, which is used to pay the debtor's loan debt. When the debtor fails to perform the main contract, the guarantor may directly transfer the deposit to the creditor without the debtor's consent. The amount of the deposit is generally determined by the guarantor and the debtor through consultation, and is determined in the entrustment guarantee contract.
(2) Providing counter-guarantee by pledge. When an enterprise applies for pledge with its own movable property or securities, the guarantee company, as the pledgee of the pledge, has the responsibility and obligation to keep the pledge. Therefore, the principle of high value, small size and easy storage should be strictly followed when choosing the pledge. Due to the low level of information enjoyment in China's financial system, the pledge right is often threatened by many uncertain factors, so measures such as registration, insurance and notarization in the pledge process are of great significance. When the enterprise's pledge has passed the examination, the guarantee company will issue a "letter of credit guarantee", with which the enterprise can raise funds from financial institutions.
(3) provide counter-guarantee by way of guarantee. Guarantee counter-guarantee is also called credit counter-guarantee, which means that the debtor provides a third party to the guarantor as its credit guarantor. When the debtor fails to perform the debt, the third party shall act as the guarantor to perform the debt or bear joint and several liabilities in accordance with the provisions of the counter-guarantee contract. Thereby dispersing the credit risk that the debtor may not perform the debt at that time and reducing the credit risk of the guarantee institution.
(4) Providing counter-guarantee by mortgage. The mortgagor mortgages the property with full ownership to the guarantee company as a guarantee that cannot be fulfilled at maturity. If the law stipulates that the mortgage should go through the corresponding procedures, it should be done, otherwise it cannot be used against a third party.
3, the provisions of reasonable risk control indicators, including:
(1) Control the capital magnification. The magnification of guarantee funds generally refers to the ratio of the total amount of guarantee to the total amount of guaranteed assets. Because the assets of the guarantee company only play a guarantee role and there is no actual outflow of funds, some assets of the guarantee company can undertake more guarantees than their own capital. The capital magnification of the guarantee institution is directly proportional to the guarantee risk. The greater the proportion, the greater the possible risks and the more benefits. Controlling the capital amplification ratio of guarantee companies in a reasonable and appropriate proportion is a necessary measure for guarantee companies to guard against risks. Payout ratio is the ratio of the total amount repaid by the guarantee institution in a certain period to the balance of the secured debt in that period. Payout ratio reflects the degree of risk undertaken by the guarantee company. The higher the payout ratio, the greater the possibility of loss of secured debt, and vice versa. Although the occurrence of compensation is not entirely determined by the guarantee institution itself, it is beneficial for the guarantee institution to determine a reasonable payout ratio in advance to prevent risks. The general compensation rate should be controlled at around 35%. In the operation of guarantee business, when the proportion of compensation exceeds the control proportion, the guarantee company should take measures to deal with it cautiously.
(2) control the guarantee rate. It is a common practice all over the world for guarantee institutions to charge a certain guarantee fee when carrying out guarantee business. The level of guarantee rate is directly related to the income of guarantee institutions and is the main source of income of guarantee institutions. If the proportion of guarantee fee is set too low, it will affect its own survival and development. If the proportion of guarantee fee is set too high, it will inevitably increase the loan burden of small and medium-sized enterprises and affect the development of guarantee industry. Therefore, the guarantee company should determine a more appropriate guarantee rate according to the situation.
Third, lawyers' legal practice in the business of guarantee companies.
1, on the guarantee business process of the guarantee company. When lawyers provide legal services for guarantee companies, they must have a clear understanding of the business processes of the guarantee companies, the resulting legal relationship and the possible risks in the legal relationship. Guarantee companies provide guarantees for small and medium-sized enterprises to lend to banks and other financial institutions, and their business processes are as follows: ① debtors provide guarantee applications; ② Credit evaluation and guarantee audit; ③ When the creditor signs a contract with the debtor, the guarantee company signs a guarantee contract with the creditor; When necessary, the guarantee company signs a counter-guarantee contract with the debtor, and ④ pays as agreed, but the premium ⑤ in the main contract cannot be fulfilled, and the guarantee company compensates ⑤ as agreed to recover.
2. Legal relations existing in the business process of the guarantee company. From the above business processes, we can see that there are the following legal relationships in the business of the guarantee company: ① the loan relationship between the debtor and the borrower; (2) the entrusted guarantee relationship between the borrower and the guarantee company; ③ the guarantee relationship between the guarantee company and the borrower; ④ The counter-guarantee relationship between the guarantor and the counter-guarantor (the borrower or others).
3. In the process of the business development of the guarantee company, the legal practices that lawyers can intervene in are:
(1) Make contracts according to the needs of specific businesses, including: guarantee contracts, entrusted guarantee contracts, counter-guarantee contracts, pledge and mortgage contracts and related agreements and legal documents.
(2) Formulate business operation flow chart and relevant rules and regulations.
③ Review the sufficiency, legality and effectiveness of counter-guarantee measures.
④ Participate in business negotiation.
⑤ Design different counter-guarantee (combination) measures for different businesses.
⑥ Acting for recovery cases.
⑦ To impart business and legal knowledge to the business personnel of the guarantee company and guide business practice.
China's enterprise credit guarantee companies are "policy-oriented" from the beginning, and the state has also introduced many policy support, but at present, the guarantee companies bear too many risks. What guarantee companies need is not only how to avoid and dissolve risks, but also a good external survival and development environment. At the same time, the guarantee company itself should establish strict risk prevention mechanism and internal restraint management mechanism to grow continuously. A guarantee company must not stop its business because of the existence of risks. Being good at managing risks and benefiting from them is the real secret for guarantee companies to be invincible.