Research On The Issues Of Financing Guarantee Company’s Right Of Recovery

With the economic and social development,the financial market has become more and more active,and the demand for financing from various entities has become more vigorous.Professional and large-scale financing guarantee companies have emerged as the times require,because financing guarantee companies can not only protect creditor’s rights,but also provide guarantees enhance credit and facilitate transactions.The right of recovery is one of the important rights of a financing guarantee company as a guarantor.However,whether it is the right of recourse against ordinary guarantors or commercial guarantees such as financing guarantees,the provisions on the right of recourse in China are relatively simple.It is difficult to protect the guarantee company’s due rights,which ultimately affects the development of the guarantee company and is not conducive to the scale of social financing.Therefore,this article intends to discuss the issues related to the right of recovery of financing guarantee companies,and put forward specific and feasible suggestions through analysis and demonstration of the problems,in order to benefit the theory and judicial practice of the right of recovery of financing guarantee companies.Except for the introduction and conclusion,this article mainly includes the following four parts.The first part introduces the basic theories related to the right of recourse for financing guarantee companies.First,it describes the financing guarantee company based on the provisions of the Regulations On The Supervision and Administration of Financing Guarantee Companies.The business that the financing guarantee company can operate includes financing guarantee business and non-financing guarantee business.This article discusses the issue of the right of recourse for financing guarantee companies.The scope of research is limited to financing guarantee business.Then it analyzes the legal relationship involved in the financing guarantee,including the various legal relations among the main creditor,the financing guarantee company,the guaranteed person,and the counter-guarantor.Then it describes the legality and creditor’s rights of the guarantor’s right of recovery,which has theoretical significance for determining the establishment of the right of recovery.Finally,from the perspective of commercial affairs,the particularity of financing guarantee is proposed,which has certain enlightening significance for determining the scope of the right of recovery.The second part elaborates the main problems existing in the context of the writing context with the establishment requirements of the guarantor’s right of recourse,and the scope and realization of the recognition and realization of the right of recourse of financing guarantee companies.The establishment of the guarantor’s right of recovery is controversial in theoretical circles.Some views believe that the establishment of the guarantor’s right of recovery should not only perform the guarantee obligation,but also include the corresponding exemption from the debtor due to the guarantor’s repayment,and the guarantor’s responsibility for the guarantee without fault.After the establishment of the financing guarantee company’s right of recourse,the determination of the specific scope of the right of recourse is involved.The main problem in the judicial practice is the identification and calculation of the fund occupation fee(recovery interest)and the liquidated damages claimed by the financing guarantee company.After determining the specific scope of the right of recovery,there are also several problems at the level of its realization:after the court has judged the main creditor’s rights and debts,there are legal obstacles for the financing guarantee company to apply to the court for enforcement of the guaranteed person’s property using the judgment document.Issues related to counter-guarantee have a certain impact on the realization of the recourse rights of financing guarantee companies.The impact of counter-guarantee on the realization of the right of recovery is mainly reflected in two aspects.One is that the courts of jurisdiction for disputes over the counter-guarantee contract are different,and the other is that the counter-guarantee system itself is easy to be used maliciously,which leads to the failure of the guarantee company’s right of recovery.The third part is a further analysis of the main issues of the financing guarantee company’s right of recourse on the theoretical basis.The first is the evaluation and analysis of different views on the establishment of the guarantor’s right of recourse.Then it analyzes the scope of the right of recovery.Financing guarantee is different from ordinary civil guarantee.As a kind of commercial guarantee,it has obvious profitability and different value emphasis.It pays more attention to the autonomy of the parties.When determining capital occupation fees and liquidated damages,we must uphold the concept of distinguishing between commercial guarantees and civil guarantees.Then the nature and calculation of the capital occupation fee,the function of liquidated damages and the adjustment and reduction rules are explained.Finally,in terms of the realization of the right of recovery,it first introduces the advanced experience of foreign financing guarantee companies in realizing the right of recovery,and then analyzes the related issues of counter-guarantee.The fourth part puts forward specific suggestions for improvement on issues related to the right of recourse for financing guarantee companies.First of all,it is necessary to clarify the "single element theory" for the establishment of the guarantor’s right of recovery.There is only one element for the establishment of the right of recovery of a financing guarantee company,that is,"guarantee responsibility has been assumed" as required by law.Although my country’s laws and regulations on guarantees do not unify the scope of the right of recovery,it can be explained in accordance with the relevant provisions of the entrusted legal relationship.Regarding the determination of capital occupation fees and liquidated damages for the financing guarantee company and the guaranteed party,the court shall combine the profitability of commercial guarantees and the particularity of the financing guarantee industry to reasonably determine the capital occupation fees and liquidated damages,and not to bundle the two for calculation.In terms of the realization of the right of recourse by the financing guarantee company,the preconditions for the guarantor to apply for enforcement shall be stipulated.The guarantee company can adopt various methods to ensure the realization of the rights,and can organize the establishment of a regional guarantee recovery company.The counter-guarantee related systems should also be improved.The rules for determining the jurisdiction of the counter-guarantee contract disputes should be clarified,and the court of jurisdiction should be judged in accordance with the main contract of the counter-guarantee contract,that is,the guarantee contract.Finally,the construction of credit-related legal systems should be improved,so as to reduce the situation that the counter-guarantee is maliciously used and the financing guarantee company’s right of recovery cannot be realized.