How the guarantee company can access the litigation preservation guarantee

Guiding Opinions on the Administrative Measures for Guarantee Companies to Carry out Litigation Property Preservation Guarantee Business issued by the China Investment Guarantee Expert Committee

Chapter II Guarantee Agency Access Standards.

Article 5: The guarantee institution that carries out litigation preservation guarantee business in this court must meet the following basic conditions at the same time:

1. Obtain the national non-financing guarantee agency grade certificate and the administrative license or approval of the competent department (Small and Medium-sized Enterprise Bureau, Construction Department, Justice Bureau, Finance Office, etc.);

2. The registered capital of more than 100 million yuan (exclusive) of the head office, and the compensation mechanism is sound;

3. Have a record of continuous operation for more than two years, and maintain profitability in the year before applying for litigation preservation guarantee qualifications and in the current year;

4. The monthly balance of self-owned funds deposited in the bank (including deposited margin) shall not be less than 30% of the registered capital, excluding the margin (deposited margin) collected from customers, and the undue liability reserve and guarantee compensation reserve shall be withdrawn in full according to the regulations;

5. It has a sound corporate governance structure and internal organizational structure, has established a strict guarantee evaluation system, standardized business operation processes, strong risk control capabilities, and is equipped with or hired professionals with relevant qualifications in economics, finance, law, technology, etc.;

6. Be able to provide the hospital with financial statements, statistical tables of guarantee business and other relevant materials in a timely manner in accordance with the requirements of the court;

7. The shareholders of the guarantee institution issue an undertaking to bear joint and several liability for the guarantee liability for litigation preservation, except as otherwise provided by laws and administrative regulations;

8. Willing to undertake the obligation of free guarantee specified by the court;

9. Willing to open a security deposit account as required by the court, deposit a specified amount of security deposit, and promise to make up the security deposit in a timely manner if the security deposit is deducted due to the liability for compensation for the preservation error or other reasons;

10. There are 3 or more practitioners in the organization who have obtained lawyer qualification certificates and 3 or more industry qualification certificates.

First of all, if you apply for property preservation before litigation, you need to provide security, that is, the preservation amount of the value of the corresponding preserved property.

Second, if your company engages in this business, it is similar to the loan relationship, and the specific procedures are the same as the company's other businesses, and no special license is required.

Just give a guarantee directly, but if it is not successful, it will be very troublesome.

Legal analysis: The litigation preservation guarantee is a judicial guarantee. It refers to the guarantee submitted by the guarantor to the people's court to compensate the respondent for the losses caused to the respondent due to improper property preservation when the applicant applies to the people's court for property preservation.

Legal basis: "Civil Procedure Law of the People's Republic of China" Article 100: In cases where it may be difficult to enforce a judgment or cause other harm to a party due to the conduct of one of the parties or other reasons, the people's court may, upon the application of the opposing party, rule to preserve its property, order it to perform certain acts, or prohibit it from doing certain acts; Where the party has not submitted an application, the people's court may also rule to adopt preservation measures when necessary. The people's court may order the applicant to provide a guarantee when taking preservation measures, and if the applicant does not provide a guarantee, it shall rule to reject the application for Shen Chenmin.

After the people's court accepts the application, if the situation is urgent, it must make a ruling within 48 hours; Where a ruling is made to employ preservation measures, enforcement shall begin immediately.

Legal analysis: the applicant applies to the court for property litigation preservation, generally to provide the corresponding or more than the equivalent of the property to be preserved, if the applicant can not provide, you can find a guarantee company, the guarantee company will use its own credit as a guarantee, to the court to issue a letter of guarantee to eliminate the date, the general court recognizes the guarantee company's letter of guarantee, so that you can not provide the equivalent guarantee The problem is solved, but the guarantee company also needs to charge the corresponding guarantee fee, the general guarantee fee has a minimum price, that is, the minimum consumption, Looking at the regulations of the specific guarantee company, some are 1%. In this way, you can ensure that after you win the lawsuit, the defendant's property is available for enforcement, and there will be no difficulty in winning the lawsuit and having nowhere to enforce it.

Legal basis: Article 105 of the Civil Procedure Law of the People's Republic of China (Property Preservation) Where there is an error in the application, the applicant shall compensate the respondent for the losses suffered by the respondent as a result of the preservation. In other words, the court has the right to require the plaintiff applying for the preservation of the demolished property to provide corresponding guarantees, so as to ensure that the defendant's losses are effectively compensated in the event of an error in the preservation.

Of course, the defendant has the right to demand compensation from the plaintiff only if it has actually suffered direct and actual losses as a result of the overall act of the security mission.