| The Small and Medium-Sized Enterprises (SMEs) have become an important constituent of national economy. It plays an important role in the economic vitality and driving force for economic growth. Development of SMEs affect by many factors. Foreign financing guarantee institutions are to help small and medium enterprises, an important means to ease the financing difficulties of SMEs. Financing guarantee institutions along with economic development, ensure the realization of creditors’ rights and thus advance the development of the socialist market economy. The history of the development of foreign professional financing guarantee institutions have been160years, the guarantee system and legal system are quite mature. The development of our country’s financing guarantee institutions mainly gone through five stages:the stage of the initial phase, actively promoting phase, regulate stage and the development stage, the development has gone through nearly20years of development. SMEs financing is important problem of China’s12th Five-Year Plan. Financing guarantee institutions, has achieved remarkable success in solving the problem of financing SMEs. In our country, a large number of outstanding problems to be solved in practice, the operation of the financing guarantee institutions greater difficulty, and greater difficulties to the financing guarantee institutions. This paper attempts based on China’s national conditions, to learn from the advanced experience of other developed countries, from the perspective of the subject Act, and building a legal system of SMEs financing guarantee institutions. Research the establishment, operation, dissolution, liquidation problem of financing guarantee institutions to perfect the purpose of the financing guarantee legal system. This article demonstrates such questions as following.Chapter one is the basic theory of the financing guarantee institutions. Firstly, the definition of the concept is the logical starting point for research financing guarantee institutions. This paper argues that the financing guarantee institutions registered in the People’s Republic of China, with independent legal personality, to provide financing guarantees for small and medium-sized enterprises, the analysis of the nature of the guarantee is credit guarantee. The basic function of financing guarantee institutions is as a professional guarantor, to improve the credit rating of SMEs, to achieve the purpose to ease the financing difficulties of SMEs. Secondly, the analysis of the property is to study the legal issues of financing guarantee institutions. This paper proposes financing guarantee institutions is special legal financing institutions to provide financing for small and medium-sized enterprises. Finally, Category of distinction is to study the mode of financing guarantee institutions. Policy guarantee institutions has characteristics such as non-profit, the management of a special department, the directly funded of government. Commercial guarantee institutions for the purpose of profit and conduct business in accordance with the market-oriented operation, raise funds to have the breadth, diversity and other characteristics. Learn from foreign advanced experience, combined with the development of the status quo of our financing guarantee institutions to establish the mode of financing guarantee institutions in China:policy guarantee institutions as the core and commercial guarantees for the main. Co-development models base on the open market.Chapter two is about the financing guarantee institutions legal system. Financing guarantee institutions law is an important barrier of guarantee system. SMEs Credit Guarantee legislative system can be roughly divided into two categories whether common law system or civil law countries. One is special legislation mode; the other is scattered legislative model. The guarantee system of most developed countries, the legal system is already quite mature. In China, Financing guarantee institutions legislation significantly lag the development of financing guarantee institutions and regulations rank lower and there is some overlap, the phenomenon of conflict, lack of overall coordination. Financing guarantee institutions can not be completely quasi Guarantee Law, Property Law, SMEs Promotion Law, Company Law and Bankruptcy Law and other laws. The country needs specific legislation on financing guarantee institutions. Our financing guarantee institutions legislation should take separate legislation. Financing Guarantee Companies Law as a special of the Companies Law. Including:the establishment, operation, dissolution and liquidation of Financing guarantee institutions. Formulated Regulations on Management of financing guarantee company and financing guarantee loan management and other supporting regulations. We should timely amendment the conflict of departmental rules and regulations, local laws and regulations, in order to maintain the unity and integrity of the legal financing guarantee.Chapter three is the establishment of financing guarantee institutions. First, determine the principle of establishment. With high-risk financing guarantee institutions, the establishment principle of the registration approves and classification approves should be taken. Statutory capital to strengthen the credit of the financing guarantee institutions, to protect the interests of creditors and the social security of transactions, and is conducive to the development of the guarantee industry. The establishment of financing guarantee institutions should be take statutory capital systems, and require minimum capital. Second, financing guarantee institution capital systems. The statutory capital system is conducive to the development of financing guarantee institutions capital model, our financing guarantee institutions should establish minimum capital and determine the contribution form and invested time. Further argues that the financing guarantee company registered capital should be paid-in capital and required by the promoter or investor once paid in full. Last, explore the scope of financing guarantee institutions. Financing guarantee institutions has been extended to all aspects of economic and social activities, more and more types of guarantees. Financing guarantee institutions have functions of zoom credit and high-risk of operators, special provisions should be made to its operating scope. From the perspective of authorization norms, financing guarantee institutions should take the mode of policy guarantees and commercial guarantee; expand the business scope of the financing guarantee and the guarantee business towards the diversification of development. From the perspective of prohibition of sexual norms, the financing guarantee institutions should be prohibited be engaged in financial business and investment business of high-risk category.Chapter three is the Operation of financing guarantee institutions. The basic operations principles reflect the basic spirit of the legislation, and the direct legal guidance of the financing guarantee institutions. Safety, liquidity and profitability as the operating principles, financing guarantee institutions establish the business model of sustainable market-oriented and prudent operation. First of all, the starting point of the operations is the guarantee business acceptance. Financing guarantee institutions should review of operational by themselves and control risk insurance, and set the maximum amount of the guarantee in line with the conditions and the requirements of guarantee business. Second, the review of the guarantee business is an important part of preventing operational risk. China can learn from Japan’s model of hierarchical authorization decision. Financing guarantee institutions should formulate the responsibility system of financing guarantee business. On this basis, financing guarantee institutions improve the collective approval system of special projects, limit approval system and establish separation system of the investigation, guarantee and the compensation. Once again, the reserve of compensation should reduce the loss of the guarantee business. One hand, countries need to establish the guarantee fund for special compensation, on the other hand, financing guarantee institutions must extract guarantee risk reserve to compensate for the losses compensation that may occur in the guarantee business. Finally, collaboration systems to improve operational risk helps and reduce the guarantee business. In China, financing guarantee institutions in cooperation with the banking financial institutions, financing guarantee institutions in a weak position, should establish equal legal status to improve proportion of guarantees, magnification of guarantee.Chapter five is about the dissolution and liquidation of the financing guarantee institutions. The dissolution and liquidation of the financing guarantee institutions can not be completely accurate with corporate law, bankruptcy law, the specific operating system is missing, develop financing guarantee institutions dissolution and liquidation of the legal norms that protect the healthy development of guarantee institutions. China should adopt a unified legislative model of Japan, South Korea. Financing Guarantee Companies law provides the special system of dissolution and liquidation. First, the financing guarantee institutions should establish the basic principles of the dissolution and liquidation, namely:the principle of prudence, the principles of social responsibility, and the principle of pre-approval, differentiated principle of quasi-market principles. Second, the paper explores the particularity issues of financing guarantee institutions. The issues include the presentation of voluntary dissolution; the system of examination and approval; strict mandatory dissolution system and bankruptcy dissolution particularity problem. Third, research the particular liquidation system of financing guarantee institutions that contains:special reporting claims and creditors’meeting, the particular liquidation group members, the particular bankruptcy liquidation order and particular guarantee creditors’rights. |
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