Legislative Study Of China's Foreign Guarantee

In the article, the foreign guarantee definition, was defined as all the legal measures, instruments and systems which can provide the opportunities of the compensation of the debt which the permanent organizations set up in China legally owe to the non-inhabitant creditors.The foreign guarantee law system contains two different legal resources, the law which manifests the request of the foreign guarantee legislation and the administrative rules and regulations which manifests the request of the foreign guarantee administration . So the research is carried out along two different way , the foreign guarantee management and the legislation.On the view of the foreign guarantee management, the management means the restrictive regulations that the foreign debt management and foreign exchange control exert to the foreign guarantee. The foreign guarantee may be divided into two different types , the foreign guarantee for non- foreign loan and the foreign guarantee for the foreign loan which is the object of the foreign guarantee management. In the foreign debt management, the caliber and way of management decides directly the way, type and potency of the foreign guarantee. The classification of direct foreign debt and contingent debt has its own legal significance , and the classification of sovereign foreign debt and non- sovereign foreign debt has too .Meanwhile, the way, the type and the potency of the foreign guarantee are limited by the current account exchange, the capital account exchange and the financial organ foreign exchange in the foreign exchange control, and the financial guarantee is the unique guarantee type. According the contradiction of the two model of management ,the foreign debt management and the foreign exchange control , it is necessary for the foreign guarantee to be classified as two types, the foreign guarantee under the item of the current account exchange and that under the item of the capital account. Finally, our country legislation system of guarantee is proposed on the view of management.On the view of legislation, the theories , basic principles, choice of the ways and validation of foreign guarantee are discussed in the text. In our country foreignguarantee system, the independent guarantee theory should be comprehensively implementted, nor the supplementary guarantee theory, to realize the investment function of guarantee. The three basic principles of the transaction authentic principle, the guarantee efficiency principle and the guarantee independent principle should be applied completely. Regarding the implication of the way of the foreign guarantee and the insufficiency of the present legislation pattern, our legislation must refer to the international practice, enrich and develop our country's real guarantee, creditor guarantee and other ways which hav the function of guarantee, and validate these ways with legal effect in the legislation. The legeal validity of foreign guarantee comes from the approving and registration of the foreign exchange administrative bureau, and the registration in the foreign exchange administrative is different from the registration in the civil bureaus. The court has the core status to valid the foreign guarantee ,and the arbitration right of the foreign exchange administrative bureau should be reduced.In brief, the foreign guarantee is a compound legal system, in which the rules and regulations of the guarantee legislation are the basic demand , and that of the exchange control and the foreign debt management are the extraordinary demand.