What are the regulatory measures and laws and regulations issued by the state for private guarantee

When an individual or enterprise borrows money from a bank, the bank does not lend directly to the individual in order to reduce the risk, but requires the borrower to find a third party (a guarantee company or a qualified individual) to guarantee it. According to the requirements of the bank, the guarantee company will ask the borrower to issue relevant qualification certificates for review, and then submit the audited information to the bank, and the bank will release the loan after verification, and the guarantee company will charge the corresponding service fees.

1. The provisions of the Civil Code on guarantees.

Article 386:The holder of the security interest shall enjoy the right to receive priority in repayment of the secured property in accordance with law in the event that the debtor fails to perform the debts due or the parties agree to realize the security interest, except as otherwise provided by law.

Article 387:Where a creditor needs security in order to ensure the realization of its creditor's rights in civil activities such as lending or trading, it may establish a security interest in accordance with the provisions of this Law and other laws.

Where a third party provides security to the creditor for the debtor, the debtor may be required to provide a counter-guarantee. Counter-guarantees shall be governed by the provisions of this Law and other laws.

Article 388.

To create a security interest, a security contract shall be concluded in accordance with the provisions of this Law and other laws. Guarantee contracts include mortgage contracts, pledge contracts and other contracts with security functions. The guarantee contract is a subordinate contract of the main creditor's rights and debts.

If the principal creditor's rights and debts contract is invalid, the guarantee contract shall be invalid, except as otherwise provided by law.

After the guarantee contract is confirmed to be invalid, if the debtor, guarantor and creditor are at fault, they shall each bear the corresponding civil liability according to their fault.

Article 389:The scope of security for a security interest includes the principal creditor's right and its interest, liquidated damages, damages, and expenses for keeping the secured property and realizing the security interest. Where the parties agree otherwise, follow their agreement.

Article 390.

During the guarantee period, if the secured property is damaged, lost or expropriated, the security interest holder may be compensated in priority for the insurance money, compensation or compensation obtained. If the performance period of the secured creditor's right has not expired, the insurance money, compensation or compensation may also be deposited.

Article 391:Where a third person provides a guarantee, and the creditor allows the debtor to transfer all or part of the debt without his written consent, the guarantor shall no longer bear the corresponding guarantee liability.

392.

If the secured creditor's right is secured by both real and personal security, and the debtor fails to perform the due debt or the parties agree to realize the security interest, the creditor shall realize the creditor's right in accordance with the agreement; If there is no agreement or the agreement is not clear, and the debtor provides security for the thing, the creditor shall first realize the creditor's right on the security of the thing; If a third party provides security in kind, the creditor may realize the creditor's rights in respect of the security in rem, and may also request the guarantor to bear the guarantee liability. The third party providing the guarantee has the right to recover from the debtor after assuming the guarantee liability.

Article 393:The security interest shall be extinguished under any of the following circumstances:

1) the extinguishment of the principal creditor's right;

2) the realization of a security interest;

3) the creditor waives the security interest;

4) Other circumstances in which the law provides for the extinction of the security interest.

Legal analysis: The company's external guarantee must pass through the board of directors or the general meeting of shareholders to deliberate and undertake in accordance with legal procedures. Without the approval of the company's general meeting of shareholders or the board of directors, directors, general managers and other senior governance personnel, as well as the company's branches, shall not sign guarantee contracts on behalf of the company without authorization.

Legal basis: Company Law of the People's Republic of China

Article 1 This Law is enacted in order to regulate the organization and behavior of the company, protect the legitimate rights and interests of the company, shareholders and creditors, maintain social and economic order, and promote the development of the market economy of socialism.

Article 2 The term "company" in this Law refers to a limited liability company and a stock company established in China in accordance with this Law.

Article 3 The company is an enterprise legal person, has independent legal person property, and enjoys the property rights of legal person. The company shall be liable for the debts of the company with all its property. The shareholders of a limited liability company are liable to the company to the extent of their subscribed capital contributions; The shareholders of the shares are liable to the company to the extent of the shares they subscribe.

The Measures for the Administration of Guarantee Companies is a legal provision that regulates and supervises the business of guarantee companies, mainly including the establishment, business scope, risk management and other aspects of guarantee companies. Guarantee companies must comply with the provisions of the Measures when providing guarantee services.

The Law on the Management of Guarantee Companies came into force on November 1, 2015, aiming to standardize and strengthen the supervision of guarantee companies, so as to promote the healthy and orderly development of the guarantee industry. The main contents of the measures include: 1. The establishment of a guarantee company:

The guarantee company shall have certain economic strength, management ability and technical ability, and shall be approved by the financial regulatory authority to set up. 2. Business scope: The main business of the guarantee company includes providing loan guarantees, commitment guarantees, letter of credit guarantees and other guarantee services to non-financial enterprises or individuals.

3. Risk management: The guarantee company shall establish a risk management system to evaluate and review the credit ability of customers and reasonably control business risks. 4. Regulatory requirements:

The guarantee company shall submit regular business reports and risk reports in accordance with regulatory requirements, and punish and stop violations.

What are the risks of a guarantee company? The essence of guarantee business is risk business, and the risks faced by guarantee companies mainly include credit risk, market risk, operational risk, etc. Credit risk is the most important risk, and if a borrower defaults, the assets of the guarantee company will be lost.

The Measures for the Administration of Guarantee Companies is an important legal basis for the supervision of the business of guarantee companies, and is of great significance for promoting the healthy and orderly development of the guarantee industry and standardizing the behavior of guarantee companies. Guarantee companies shall strictly abide by the provisions of the Measures, strengthen risk management and internal control, and protect the legitimate rights and interests of themselves and their customers.

Legal basis]:

Article 11 of the Measures of the People's Republic of China for the Administration of Guarantee Companies Guarantee companies shall establish and improve the credit assessment system, improve the risk control mechanism, and ensure that the guarantee services provided comply with national laws, regulations and regulatory requirements.

The guarantee company shall take safety, liquidity and profitability as the operating principles, and establish a sustainable and prudent business model with market-oriented operation. The business dealings between the financing guarantee company and the enterprise, banking financial institutions and other customers shall follow the principle of honesty and trustworthiness, and abide by the provisions of the contract; The guarantee company shall conduct its business in accordance with the law and shall not be interfered with by any authority, unit or individual; Financing guarantee companies to carry out business, shall comply with the provisions of laws, regulations and these measures, shall not harm the interests of the state and the public interest.

Legal basis]:

Article 681 of the Civil Code.

A guarantee contract is a contract in which the guarantor and the creditor agree that the guarantor will perform the debt or assume the responsibility when the debtor fails to perform the due debt or the situation agreed by the parties occurs.

Article 682.

The guarantee contract is a subordinate contract of the main creditor's rights and debts contract. Where the principal creditor's rights and debts contract is invalid, the guarantee contract is invalid, except as otherwise provided by law.

After the guarantee contract is confirmed to be invalid, if the debtor, guarantor and creditor are at fault, they shall each bear the corresponding civil liability according to their fault.