On The Legal Countermeasures Of Commercial Bank 's Risks In Loan Guarantee Insurance

Loan Guarantee Insurance in our country as a new insurance system has guarantee function. One side, it opens up a new area of cooperation of bank and insurance, eases the financing difficulties of groups as small micro enterprises, and gains the favors of governments,commercial banks and the insurance companies,on the other side, because it’s in a preliminary stage and legal system is not perfect, the academic circle and judicial practice circle generated controversy intensively over the nature of the Loan Guarantee Insurance, legal application, rights and obligations between the Participants and some other problems. Some people think that the nature of loan guarantee insurance is guarantee, because it has similar guarantee functions and participants with guarantee, and it’s different from the general property insurance. When solving the disputes of parties, if referencing to the Insurance Law will violate the essence of loan guarantee insurance, it should be refer to the Guarantee Law. Although it’s different from the general property insurance, some people still hold that the nature of loan guarantee insurance is insurance. Because it has essential difference from the guarantee, so we can only apply to the Insurance Law or the Contract Law, not to the Guarantee Law. In addition, there are some people who think that Loan guarantee insurance both has the property of guarantee and insurance. We should choose suitable law according to the specific case. The skimble-scamble views are bound to lead to confusion in judicial practice. A similar case may get the different results in different sentences. The legal status of commercial banks vague will eventually lead to their legitimate rights and interests can’t be ensured. At the end of20th Century and early21st Century, the auto loan guarantee insurance ended up the high rate of non-performing loans to commercial banks and high compensation rate to insurance companies. Because of being an important party to Commercial bank in the loan guarantee insurance, if the loan loss rate is high, it is bound to affect the business enthusiasm of bank, to affect the sustainable development of the loan guarantee insurance, and to affect the security of the credit assets and the stability of the financial order. Therefore, in order to protect the rights and interests of the commercial banks, this paper turned to analyses and research on the risks of commercial banks when they were engaged in loan guarantee insurance work, and find the countermeasure. Based on the analysis of the views of experts and scholars at home and abroad, the documents of The Supreme People’s court and the China Insurance Regulatory Commission, this paper hold that the loan guarantee insurance is a special kind of property insurance system. Objectively, although it has the guarantee function, it can’t conceal its obvious insurance property. The loan guarantee insurance essence should be insurance. The legal relationship between the commercial bank and the insurance company is not the legal relationship between the obligee and the security. Handling their disputes should not apply for the guarantee law. Accordingly, the loan guarantee insurance contract is an independent commercial contract. The relationship between the loan guarantee insurance contract and the loan contract is not master slave contract relationship. However, China’s current law doesn’t clearly define the legal nature of loan guarantee insurance. And further more, there are some discrepancies between the provisions of the "insurance law" and the loan guarantee insurance trading rules. Such as, if the insurant creates insurance accident deliberately, the insured has the right to freedom from compensation. If applying such provisions to resolves disputes between commercial banks and insurance companies, it’s not conducive to protect the legitimate rights and interests of the commercial bank. Therefore, this paper proposed the suggestion of legislation from three aspects:they are revising "insurance law", formulating the administrative regulations and formulating the judicial interpretation, In addition, commercial banks also face risks from the insurance company and the borrower, the risks from the improper operations of commercial banks themselves. This paper proposed the solutions respectively from three aspects; they are strengthening the supervision of insurance companies, perfecting the credit inquiry system, and strengthening the supervision of commercial banks. We hope that the perfection of the supervision can regularize the behavior of the insurance company and commercial bank, Credit screening can find out the people with poor credit, and these strategies can protect the safety of credit assets and maintain the stability of financial order.