Researchon The Effectiveness Of Being Responsible For Liquidated Damages Agreed By The Guarantor With The Financing Guarantee Company

?In our country, because of the poor credit status of the small and medium-sized enterprises(and individuals, the same below)does not conform to the lending standards of banks, as well as the problem that it is lack of the incentive mechanism to the lending of banks, banks would not like to provide loans to the small and medium-sized enterprises which are badly in need of financial supports. All these reasons cause the difficulty of financing of the small and medium-sized enterprises. In order to solve the problems above, the financing guarantee companies emerged at the right moment. These companies tender the contract guarantee to banks for the small and medium-sized enterprises in the form of assurance services for value. Since the financing guarantee business is in the stimulus of the financing needs, it is playing a more and more important role in the field of the commercial guarantee market.However, because that the related law system is not perfect, some practical problems to be solved have arisen in the financing guarantee industry. In these problems, there is a controversial one which should be responded to, that how to recognize the effectiveness of being responsible for liquidated damages agreed by the guarantor with the financing guarantee company. Hoping to provide some views to the justice practice for reference, the author does some research about this issue.In addition to the parts of introduction and conclusion, this paper would like to discuss the issue mainly from the following four parts.Part I: The author wants to comb different viewpoints on the effectiveness of being responsible for liquidated damages agreed by the guarantor with the financing guarantee company which are exist in the judicial practice. These viewpoints include the positive theory of the recognition of the effectiveness of this agreement, the negative theory of the recognition of the effectiveness of this agreement and the eclectic theory of the recognition of the effectiveness of this agreement which differs one situation from others. Based on the summary and analysis on the reasons of these three points of view in this part, the author lays the foundation of the screening and reception or rejection of the effectiveness of being responsible for liquidated damages agreed by the guarantor with the financing guarantee company.Part II: The author focuses on the factors that which should be considered in the recognition of the effectiveness of being responsible for liquidated damages agreed by the guarantor with the financing guarantee company. This part analyzes the factors which should be weighed in the recognition of the effectiveness of being responsible for liquidated damages agreed by the guarantor with the financing guarantee company, covering different aspects from the implementation of the function and mechanism of the security law, the balance of interests between the parties to the regulations of the identification of the effects of contracts in the contract law.Part III: On the basis of the first part and the second part, the author interprets the attitudes and principles of the effectiveness of being responsible for liquidated damages agreed by the guarantor with the financing guarantee company. The author explains this issue from two aspects of the theory and the practice. In the aspect of theory, the paper focuses on the guiding significance to the identification of this issue by the principle of the balance of interests. In the aspect of practice, the paper builds a thought and basic method of the identification of this issue, and draws a conclusion that we should not simply affirm the the effectiveness of being responsible for liquidated damages agreed by the guarantor with the financing guarantee company or deny it.Part IV: The author considers the recognition ofthe effectiveness of being responsible for liquidated damages agreed by the guarantor with the financing guarantee company from the angle of promoting the development of financing guarantee industry. This part puts forward the view that we should not admit the effectiveness of being responsible for liquidated damages agreed by the guarantor with the financing guarantee company blindly. Although it will benefit the balance the interests between the parties and promote the developments of the security industry, but it will also reduce the enthusiasm of providing the guarantee service of the financing guarantee companies and make disadvantageous influences of the development of the financing guarantee businesses in the short term. So in order to integrate and promote the developments of the financing guarantee industry, we need to put forward some necessary measures. These measures include uniforming standards for the charge of the security for costs, strengthening the control measures on the risk of credit guarantee, giving a full play on the financing guarantee by the government, extending financing channels, innovating the financing mode and accelerating the reform of the financial system.