Research On The Qualitative Issues Of The Difference Supplement Agreement In Judicial Practic

Deficiency top-up is a common credit enhancement measure to protect the creditor-debtor relationship.However,the difference top-up is only as a transaction mode,there is no clear definition and arrangement in the law.In judicial practice,there are usually different results of the determination of guarantee contract,debt accession,independent contract,etc.The difference of legal nature directly affects the subsequent evaluation of legal effect,application of relationship,and finally leads to very different legal consequences.Therefore,to determine the legal nature of the first task,should be combined with the analysis of the specific transaction scenarios,can not be generalized.The first time that the difference complement as a credit enhancement measure is mentioned in an official normative document should be the provision in the Interim Measures for Project Revenue Bond Management of the National Development and Reform Commission in 2015.(Article 30.[Difference Compensation Agreement]).The formal entry into judicial origin shall be the provisions of the Supreme People’s Court in Article 90.and Article 91.of the 2019.Jiumin Minutes,but in the judicial documents at that time,it is still a difficult problem to distinguish whether the difference compensation constitutes a guarantee or debt accession.Through analyzing judicial cases,this paper summarizes the three methods commonly used in judicial practice to determine the difference compensation,and finds that there are problems of unclear criteria and confusing application in judicial practice.In order to clarify the above content,this paper is divided into five parts.The first part is the introduction.The significance and background of this paper are explained,and the problem of this paper is initially proposed;the literature on the legal nature of the difference is studied,the research method and innovation of this paper are summarized,and the research ideas are clarified.The first part is the introduction.Analysis of the credit enhancement documents in the context of the rapid development of capital management has received much attention,but the lack of relevant legal provisions to regulate,the situation has changed recently,the capital management credit enhancement business gradually towards compliance.However,after the legal and adjudicative views have given clear guidelines on the qualitative identification of credit enhancement,this paper finds that there are still cases of circumventing the legal nature of credit enhancement documents in judicial practice,and therefore raises questions to conduct relevant research.This chapter also composes the doctrinal discussion on the scope and effectiveness of credit enhancement.The second part is a typological analysis.First,it analyzes the financial theory of margin financing,analyzes its financial principles and discusses the regulatory principles of rigid payment;it analyzes the difference between the nature of credit enhancement documents and traditional guarantees,which is one of the reasons why they can be widely used and increasingly developed in the capital management business.Then,analyze the legal structure of differential top-ups and discuss the legal structure of various types of differential top-ups that have emerged in practice.This includes the validity of the complement of the inferior level to the superior level of the graded capital management products,which is essentially a lending legal relationship;the invalidation of the rigid exchange prohibition made by financial institutions,and with the trend of strict regulation,there is also a tendency for judicial decisions to expand the scope of the subject of rigid exchange invalidation to financial institutions and their related parties as well as the legal nature of credit enhancement provided by third parties needs to be classified for discussion.The third part is a legal analysis of atypical guarantees.Firstly,the scope and definition of atypical guarantees are explained,and there are a large number of atypical guarantees constructed through contractual arrangements in financial innovation,which are "atypical" in the sense that they are neither directly absorbed by the Civil Code through the guarantee system nor recognized as famous contracts,and their composition,characteristics and effects are derived from contractual agreements rather than legal provisions."Secondly,the author discusses whether atypical guarantees violate the legalism of property rights and create systemic conflicts;discusses the nature of atypical guarantees and explains their advantages of meeting the needs of financial practice,efficiency and cost reduction.Finally,the author suggests that the judiciary should adopt an inclusive attitude in dealing with atypical security measures such as gap-filling agreements.The fourth part is case analysis.Firstly,through analyzing the classic cases on Beihang University’s Law Treasure,we will clarify the application scenarios and manifestations of the differential credit,and describe the attitude of judicial authorities towards the differential credit.Secondly,the logic of the determination of the agreement on the difference in the judicial practice is summarized,and the scenarios of the application of various methods are clarified.The research of this paper finds that there are phenomena such as the determination of the nature of avoidance,the determination based on the consent of the parties,the determination based on the formal elements of the contract,and the determination based on the agreement of the master-subordinate relationship in the contract,and reviews the advantages and disadvantages of the judicial determination mode.The fifth part is to further analyze and construct a qualitative framework for identifying the legal nature of credit enhancement documents in the field of capital management by combining the conclusions of the previous normative and practical analyses.This paper argues that the path of identifying credit enhancement documents in the field of capital management should first be based on the identity of the credit enhancement obligor to identify the corresponding normative progression.Among them,the graded products belonging to the inferior level difference complementary is valid,except for the inferior level difference complementary of private capital management business,such situation belongs to the violation of the SEC normative documents,which may constitute the situation that the contract against public order and morality is invalid;the rigid exchange provided by the financial institution of the manager is invalid,and the guaranteed rigid exchange clause provided by the related party of the manager may also be invalid,depending on whether the judicial discretion is exercised to This depends on whether the judicial discretion is exercised to make penetrating recognition;credit enhancement provided by third parties other than the parties to the trust contract needs further detailed discussion.