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Property rights law, especially a rigorous and complete property rights law, has always been the focus and goal pursued by Chinese civil and commercial law scholars. This is not only a test of the maturity of our country’s legislative level, but also the development of property rights law. The introduction of the code will have a significant and far-reaching impact on social life. The purpose of property law is to delineate the boundaries between the state's public power and citizens' private property rights, to achieve a harmonious order that resolves disputes and to achieve economic efficiency in making the best use of property. Based on this, the value orientation, system design and even every detailed provision in the current draft property law will have a huge impact on our economic life tomorrow.
The third draft of the Property Law has just been discussed. Because some of its clauses are highly controversial, it has once again been released to the whole society for consultation. This article will analyze the relevant provisions on financial claims and get a glimpse of them. and explore how to proactively respond.
Improve the chattel guarantee system and expand corporate financing methods
Wu Xiaoling, deputy governor of the People's Bank of China, recently stated that the People's Bank of China is actively participating in the revision of the Property Law and plans to increase the content of chattel mortgages and pledges. Create more convenient conditions for corporate financing. The current security law stipulates that movable property such as machinery, transportation vehicles and other properties owned by the pledger can be used as collateral, but there is no clear explanation for "other properties". In practice, some movables and interests have value and can bring future benefits, such as inventories, accounts receivable, charging rights, unharvested crops, etc. However, according to current laws, there is no clear provision that these movables can be used as mortgages. properties and pledges, which affects the financing capabilities of enterprises. The People's Bank of China is vigorously promoting the inclusion of these movable properties in the scope of mortgage pledges. Article 244 of the draft stipulates that the following rights that the debtor or a third party has the right to dispose of can be pledged:
(1) Bills of exchange, checks, and promissory notes;
( 2) Bonds and deposit certificates;
(3) Warehouse receipts and bills of lading;
(4) Transferable equity;
(5) Transferable Property in intellectual property rights such as registered trademark rights, patent rights, copyrights, etc.;
(6) Toll collection rights for highways, power grids, etc.;
(7) Laws and administrative regulations may issue other property rights.
The so-called movables include (vehicles, ships, aircraft, etc.) means of transportation, machinery and equipment, accounts receivable, inventory, bills (cheques, bills of exchange, promissory notes), equity, bonds, deposit slips, knowledge Property rights, etc., can be included in the scope of guarantee abroad and used as mortgage or pledge to obtain loans from banks. At present, the value of movable assets of our country's enterprises is about 20 trillion yuan, which is about twice the value of real estate. And with the development of the economy, the value of movable assets will continue to increase. Previously, although domestic commercial banks had tried asset loans, they could not really solve the financing problems of enterprises. The lack of a chattel guarantee system makes the actions of banks and enterprises lack corresponding legal basis, and the provisions on chattel guarantees in the Guarantee Law cannot be effectively implemented. Among the above-mentioned movable assets, ships, aircraft, bonds, and deposit certificates are usually not owned by most companies that are in urgent need of funds; vehicles, machinery and equipment, intellectual property rights, and equity of ordinary companies are usually difficult to transfer and realize, so the guaranteed value is low. High, and these movable properties are crucial to the normal operation and operation of the enterprise, so the borrower needs to possess and use them while pledging. If the value and the guaranteed value cannot be realized at the same time, this kind of chattel pledge loan will be of little significance. Therefore, the content of movable property security in the Property Law focuses on the mortgage security of accounts receivable and inventory.
From domestic and international banking practice, accounts receivable and inventory are assets owned by most companies, and usually have a higher security value than machinery and equipment and intellectual property.
Companies generally do not notify relevant customers after pledging accounts receivable to banks. When the customer repays the accounts receivable, the repayment amount is automatically offset against the company's loan to the bank.
Under normal conditions, the increase in accounts receivable of small and medium-sized enterprises is closely related to the increase in their sales.
It is foreseeable that accounts receivable and inventory mortgage guarantees will become the main financing channels for my country's small and medium-sized enterprises and import and export trade enterprises in the future. Although this method is not directly included in the draft property law, it is The discussion on the guarantee method itself is undoubtedly helpful to the final legal confirmation.
For banks, accounts receivable and inventory guarantees, on the one hand, expand their business scope and increase cooperation areas, and to a certain extent reduce the financial risks caused by excessive reliance on real estate mortgages for loans. Reduce the non-performing ratio and improve the competitiveness with foreign banks. On the other hand, it also increases the difficulty of supervision. To realize the real role of these two guarantee methods, it is necessary to control the capital flow of enterprise operations, carry out special management of sales accounts, and include upstream and downstream economic objects into the unified scope of post-loan management. Otherwise, this emerging guarantee method will become a mere formality. At the same time, corresponding safeguards must also be in place, such as restrictions on warehousing institutions and the establishment of a complete movable property registration system. One of the basic characteristics of property rights is that one thing has one right. If there is no unified management of the external physical form of the object and the attribution of internal rights, the realization of property rights, especially other property rights, will become an empty talk.
Propose the competition between security rights and priority, and improve the social credit system
In the discussion opinions, voices from the financial sector clearly stated that the property law should regulate security rights and debt priority rights relationship. Regardless of whether this view can be reflected in the formally promulgated property law, this understanding itself represents a good tendency and provides a valuable value judgment orientation for the establishment of a harmonious social credit system.
Generally, property rights should take precedence over claims, but Article 286 of the Contract Law stipulates that the claims of a construction company have priority over secured bank claims. It can be seen that secured claims are not necessarily superior to claims under special circumstances. Attaching this social value function to the legal value function and positioning it as a priority is questionable. This part of the legal relationship should be incorporated into the lien in the processing contract to regulate it. Confirming the scope and duration of the exercise of the lien is an optional way to resolve the contradiction between property rights and priority.
In 2004, the World Bank reached two important conclusions through a survey of 145 countries around the world. First, better guarantee laws equal more bank credit; second, good guarantee laws can reduce defaults. , reduce interest rate spreads. Comparing the civil law system and the common law system, common law countries score higher. The main reason is that the guarantee legal system of the British and American countries is relatively complete and focuses on protecting the rights of creditors. In many judicial trials in our country, in order to protect the rights of the so-called weak, the rights and interests of banks have been ignored or even ignored. This approach of focusing on protecting immediate interests and neglecting long-term interests is actually against the laws of market economy. Protecting the rights of creditors means protecting the credit mechanism and the market mechanism. Only when market participants have a certain expectation of default behavior can the risk of default be minimized. The Property Law is a major legislative activity before the promulgation of my country's Civil Code. The content of the draft regarding security rights is very important for the next step in protecting the rights of bank creditors. If the original order of creditor's rights and property rights is reversed in order to protect the interests of the weak, it will undermine the principles of the rule of law and the rules of the market economy. This will not only harm the interests of banks, but more importantly, it will affect the public's understanding of the credit mechanism. direction, thus causing chaos in the social credit system. This cost cannot be measured by the size of the immediate benefits.
Change the order of guarantee realization and cancel the guarantor’s right of first performance defense
my country’s current guarantee law stipulates that property guarantees are superior to personal guarantees. If both guarantees exist at the same time, the creditor shall If the guarantee of the property has not been completed, the guarantor cannot be required to bear the guarantee liability.
Article 198 of the draft stipulates that the guaranteed creditor's rights are guaranteed by both physical and human guarantees. If the debtor fails to perform the debt, the creditor shall realize the creditor's rights in accordance with the agreement; if there is no agreement or the agreement is unclear, the debtor shall provide the physical guarantee himself. , the creditor shall first realize its claim on the security of the thing; if a third party provides a guarantee on the thing, the creditor may realize its claim on the security of the thing, and may also require the guarantor to bear guarantee liability. After the third party providing the guarantee assumes the guarantee liability, it has the right to recover from the debtor. This provision creates the option for creditors to demand compensation and provides greater space for banks to preserve their assets.
Provisions for default mortgage rights
Article 204 of the draft stipulates that upon written agreement between the parties, enterprises, individual industrial and commercial households, and rural contract operators may transfer existing and future When the debtor defaults on the mortgage of the chattels he owns, the creditor has the right to receive priority in repayment of the chattels when the mortgage rights are agreed to be realized. This is a major breakthrough in the original guarantee law that the collateral must be an actual existence. Although how to operate it in practice remains to be discussed, this institutional arrangement obviously pays more attention to protecting the interests of creditors than the original law, and expands the scope of once The scope of property for which claims cannot be repaid is undoubtedly a major step forward in legislation.
(Editor: Zhentian)
Source: China Urban and Rural Finance News
Reference: /News/2005714/BPeople/644865253900.html