The Research Of Reason And Counter Measure Of Commercial Bank's Nonperforming Loan From Law Aspect

As a principle measure for a company's successful financing, credit guarantee of commercial bank plays a significant role in world economy. Improvement on credit business of commercial bank makes Chinese economy increase sustainable and fully after the reform and opening policy. This thesis discusses the status quo and existing problem of commercial bank's nonperforming loans from law aspect , and then the author gives some suggestions on how to solve the difficulty.Part I start with the definition of commercial bank's nonperforming loan. Nonperforming loan is caused by the borrower's failure to pay off the principle and interest on schedule to commercial bank violating original credit contract, or there has been an indication that the borrower cannot discharge the principle and interest to commercial bank on time according to the contract. Further more, the author show the present situation of Chinese commercial banks'nonperforming loan. Through the data analysis of the nonperforming loan in the past years, it shows a huge scale and high rate of nonperforming loan. Successive nonperforming loans of banks has become a potential threats to financial crisis.Part II analyses the reasons of nonperforming loan from law aspect. There have been many laws in which regulate the logical protection for credit assets of commercial bank. For instance, the newly issued Property Law regulate immovable property's regulatory system and perfect the maximum mortgage, which are important protections for creditor's rights of banks. But from the author's point of view, as a section law, Property Law is not all-round, and Guarantee Law has been the core one to coordinate the relation of company financing domestically, while the Guarantee Law and Company Law under the Property Law have many disadvantages which hinder the protection of banking creditor's rights. Aiming at the problem, the author issues following questions:Firstly, the regulations which prohibit the precontract of substitutionary performance in Guarantee Law increases the guarantee rights'cost, which hinder the protection of banking creditor's rights to some extent. Secondly, there are deficiencies on banking creditor's rights in Company Law.Thirdly, lacking of good credit system is the origin of banking nonperforming loan.Part III gives some suggestions upon how to solve the problem analyzed in the former parts. The author considers that the precontract of substitutionary performance has advantages, for example, it promotes the debtor to pay off on schedule and lowers the exchange cost of realizing guarantee rights, although the precontract of substitutionary performance might cause the imbalance of guarantee applicants and guarantor's benefits and hurt other creditors. We should identify the precontract of substitutionary performance, this is not only the need to respect the autonomy of wil for the parties, but also to make up the deficiency of guarantee measures.The precontract of substitutionary performance realizes the guarantee rights in the means precontracted by parties, maintains the freedom of individuals, and embody the principle of autonomy of will. Basing on the principle of autonomy of will, Civil Law displays major function on safeguarding individuals'freedom and dignity, promoting the development of social economy and culture. Autonomy of will aims at providing insurance in law to the relations between rights and obligation formed by individuals'will, and thereby it carry out the autonomy of will. The precontract of substitutionary performance fully accords with the principle of autonomy of will in private law, because it is based on the parties'will, and it realize the guarantee rights in accordance with the means precontracted by parties.As a measure of Private Law to realize the guarantee rights, the precontract of substitutionary performance implement guarantee rights according to the precontract made by parties. The process of the precontract of substitutionary performance is simple, it is not only saving the cost of process of auction,but also avoiding the risks brought by the auction measures. Law regulates the auction measure originally for the balancing interest between creditor and debtor. But in practice, there emerges a number of disadvantages in auction: auction fee is not only very high, but also the money got by auction is lower than the market. Even though this, there are no buyers sometimes anyway.According as regulations of the precontract of substitutionary performance, creditor is allowed to gain the ownership of the guaranty when the debtor cannot fulfill the obligation. This is a strong pressure to the debtor, so it is usually a valid measure to promote the debtor pay off the credit. The creditor can get the guaranty to make up the lost when the debtor nonperformance the obligation, in this way the creditor protect their rights quickly and efficiently. The process mentioned above make the creditor have a strong guarantee effectiveness on the creditor's rights.Aiming at the guarantee register system, the thesis suggest that on basis of the regulation on Real Estate Registration in Property Law furtherly integrate the register institutions, so that it will reduce the guaranty transaction fee. Meanwhile, we should build essential inspection system, so that we can protect the creditor's interest. Building up essential inspection system is a especially important promotion for the protection of the state bank's guaranteed creditor's rights.It is well known that our nation is deficient in credit system, which is also the origin of banking nonperforming loan, a serious problem. This thesis suggests improving credit system and Credit Bureau from law aspect. Further more, as a example of Chex systems which is an sharing information system between customers of American banks, the author draw lessons from developed countries to suggest that credit system is essential for banks to survive. Basing this, the thesis also constructively suggest the criminal law protecting system for the credit system, which can restrain the behaviors that borrower defaults bank's credit and resist to pay money.Finally, integrating the Commercial Bank Law and Contract law etc, the thesis furtherly discusses the law protection of banking creditor's rights, and then give some suggestions on improving juristic person management system of commercial bank and regulations on priority discharge of project funds.As a law thesis on commercial bank's nonperforming loan creditor's rights, the thesis refer to the economic field during the discussion, which makes the essay permeate with economical theory to some extend. The innovation side of the thesis is just this, which is through law aspect to describe and analyze the economical phenomenon. The original thoughts of the author is trying to give some suggestions on how to solve the problem from the logical aspect and hoping these advices would be useful for the protection of banking nonperforming loan creditor's rights.