And the consortium secured floating mortgage pros and cons of each
China's Civil Law of the consortium mortgages
China's "security" Article 34, paragraph 1, stipulates: "The following property can be secured: (a) who secured all the ground for housing and other crops; (b) the mortgagor all machinery, transport vehicles and other property; ( C) the mortgagor in accordance with the law of the state-owned power to dispose of the land use rights, housing and other ground for crops, (4) mortgagor in accordance with the law of the state-owned power to dispose of the machinery, transport other property, (5) were secured by the contractor in accordance with the law Fabao Fang agreed to mortgage the barren hills, Huanggoushan, Huang Qiu, wasteland and other wasteland of land use rights (6) can be secured in accordance with the law of other property. "Paragraph 2 of that article:" mortgagor property can be included in the preceding paragraph Be secured. "Here" be secured, "whether it refers to the consortium mortgage» Some scholars believe that "mortgage together," the consortium is not secured, but the common collateral or narrow the enterprise mortgages. (((Some scholars believe that "mortgage together," a consortium collateral.
In fact, the "guarantee" the article 34 paragraph 2, of "collateral together" is not common security, not a floating security. Common security and the consortium of different mortgages, it is the subject of a number on the right to set up a number of unsecured creditors the same common security, set the number of mortgage assets is independent of each other, not the same as the consortium secured a number of sets of property A whole with a secured creditor. However, "with mortgage" also clear that the consortium of non-mortgage, it does not specify the consortium's main mortgage, the subject of features, such as setting and exercise.
It was also the basis of the Supreme People's Court of Justice explained to the consortium that China has not secured the way of security. March 26, 1994 to the Supreme People's Court of Shandong Province Higher People's Court pointed out in the letter of approval: "In a number of creditors of the debtor's circumstances, the debtor will be secured all of its assets to one creditor, thus the loss of the debtor to perform other The ability of debt, a violation of the legitimate rights and interests of other creditors, according to "People's Republic of China General Principles of Civil Law" Section 4, Article 5 of the provisions, should be found invalid. "Approval for this, I think we should correctly understand its meaning. It is mainly directed against the debtor by a certain disposition of its property damage and for the benefit of creditors, did not deny the existence of the consortium collateral. First, the consortium will not mortgage companies all property collateral to creditors, if the enterprises will be part of their property to other unsecured creditors do not damage the interests of the creditors, it is entirely possible and secondly, we are fully in the enterprise property may be located on the first The consortium mortgage, and then set up the other way of security.
In short, although the true sense of the mortgage business consortium in China's system has not really established, but the law and in practice does not deny that the consortium form of collateral exist. Therefore, in practice, we can use such a special way of collateral.
Mortgage banking consortium in collateral in the use of business
Through the above analysis, we can see that the Bank in its mortgage business in the need to introduce new collateral, and the consortium is also applicable mortgage market and the economic development and not for China's law and practice prohibited by a more Facilitate the collateral, so the banks collateral in the business it should have full attention. Below the consortium to an analysis of mortgage loans in the banking business of significance, role, and in practice should pay attention to the problem.
(A) of bank loans secured by the consortium in the mortgage business of the significance and role of
Mortgage with a consortium of banks operating principle of security. In front of our analysis of the commercial banks in the course of business in the attention of profit-making and mobility at the same time, the assets must also pay attention to the safety of principle. Therefore, when banks in the lending business will be considered a security capacity. If the consortium mortgages, the banks without worrying about the process of financing large-scale enterprises lack the ability to guarantee the phenomenon. Because the mortgage business and property of a whole (the consortium) to effectively secured bank debt, and the composition of the consortium of banks agreed to a non-general can not be separated from the consortium in the. Is the property of both companies will once again mortgage the future or not the return of corporate loans, the banks can exercise the right of priority debt service. This bank creditors will have a reliable guarantee. Also in line with a consortium mortgage banking operating profit principle. Enterprise was after more bank financing the production and operation can go on smoothly, the capital flow faster, business-effective, and will also be able to return earlier bank loans. Bank funds flow speed, high-profit-making will.
Enterprises, especially large enterprises, form a consortium to provide mortgage financing secured access to a lot of convenience. The consortium will be mortgage business and property as a whole, this way we can give full play to the security of property value and enhance their security capabilities. Because the property is a business enterprise integral part of the property, if combined with each other, coordinate with each other, then we can play its greatest effectiveness. In particular, the full development of market economy, enterprises need to finance more and more, the financing needs of large enterprises with more and more. If the creation of the security in accordance with the traditional way, a single far from the value of the collateral and the value of the collateral, such as bank loans will not be able to provide effective security. In the absence of a suitable property to provide specific guarantees, a consortium mortgage companies will be able to effectively make up for the lack of security capabilities, the banks will be able to more confidently loans. Moreover, enterprises in their property consortium set on the mortgage, can give full play to the property value. Enterprises in the day-to-day production and business activities can continue to use their security and property (although such use is limited by the banks), which on the normal production and operation of enterprises less affected.
In short, the consortium is secured in giving full play to its security value and use value on the basis of both the providers of funds to meet the requirements, but also meet the financing needs of a very effective way of collateral.
(B) the consortium banks in the process of collateral should pay attention to some of the problems
Although the consortium of banks charging method is very favorable, but the security settings in the consortium, in the course of the exercise, is very vulnerable to some problems. For example, in funding can be secured on the issue of the scope of the property, some of the legal requirements will often can not mortgage the property as an integral part of the consortium banks to provide enterprises in the property set on a mortgage, if not the necessary publicity measures, Then companies may also set the property on the other security interest when corporate behaviour is sufficient to reduce the value of business property, claims against the banks, the banks have not been effective measures to limit, and so on. These are likely to affect the realization of creditor banks. Below on the specific consortium of banks in the mortgage process should pay attention to some aspects.
1, the consortium secured the right settings. "Security" section 38 provides: "mortgages and mortgage people should be in written form the conclusion of the contract." Therefore, banks and enterprises should be made in writing to the consortium secured the contract to set mortgage. In accordance with the "guarantee" the provisions of section 39, should be documented in the contract the following: the main creditor secured the type and amount of debt the debtor to the period; the composition of the consortium, type, scope and ownership; consortium mortgage Secured claims; parties agreed on the need of other matters. The parties can also make corrections in future other than the provisions of the preceding paragraph.
Bank signed a contract with the enterprises should also pay attention to the requirements of mortgage companies to register in order to obtain publicity effect. Some property required by law to be registered, then the banks and property companies should be required to register. Some property of the parties are free to choose whether to register. No registration of a mortgage is not against a third person effect. China's "security" in accordance with the type of collateral requirements for registration. According to the provisions of section 42 to set the ground without the use of the right to mortgage the land, from the issuance of land use rights certificates of land management departments to register with city real estate or township (town) and village enterprises, such as building the plant collateral , By the local people's governments above the county level departments under the registration of mortgages to the forest, from trees above the county level departments in charge of registration of the aircraft, vessels, vehicles secured by the registration department of transport equipment registered with the enterprise's equipment and Other movable property secured by the property is located in the industrial and commercial administration departments registration. In accordance with this provision, the consortium should be secured to the main industrial and commercial administration departments registered in other auxiliary of the registration office. The reason why these collateral to registration, first made to prevent duplication of mortgage collateral value less than the amount of borrowing, damage to the interests of creditors. As mortgage registration information is open to the public, to allow inspection, copying or reproduction, in the mortgage contract signed before the bank could be given to relevant departments search, thus avoiding the duplication of mortgages. The second is for the debt service, because the law must be registered without collateral may not be registered against a third person, so the debt service, registered in the first unregistered debt service, are registered by the sequence of compensations. Order by the same proportion of the debt service.
In addition, according to foreign practice, banks should choose a legal personality of the mortgage business consortium signed the contract, and not natural persons, partnerships and other illegal organizations signed. Because of the legal personality of the business enterprises need to be consistent with the "Company Law", it can not be arbitrary punishment of their own property. For example, the company's capital companies to the three principles (that is, determine capital, capital maintenance and capital unchanged) constraints, the company continues to exist, the value of its assets would not have changed much, so the impact on the bank claims it even smaller.
2, a consortium. According to "guarantee" relevant regulations, real estate, personal property and rights, can be used to mortgages. At the same time banks in the signing of the contract, paying particular attention to the following property shall not mortgage: land ownership; arable land, house foundation, Ziliu Di, the retention of all the mountains, and other collective land use rights (except as otherwise provided in the law); schools, kindergartens, hospitals and other public welfare to For the purpose of the institutions, social organizations, educational facilities, health facilities and other public facilities; ownership, the right to use unknown or disputed property, was closed down in accordance with the law, detention, monitoring the property in accordance with the law shall not be secured by copyright and other property, Patents, trademarks and other intellectual property rights in the spirit. If the consortium contains the property, then the mortgage on the property is null and void.
3, the consortium of preservation. After the establishment of security in the consortium, the banks should pay attention to the operation of enterprises, especially enterprises to mortgage the property punishment. Mortgage because the agreement does not transfer possession of the collateral, mortgages were still on the mortgage of possession, use, income and punishment. Banks and businesses can request signed a written contract, the consortium agreed enterprises in the property may not be re-mortgage or pledge.
When the mortgage's conduct is sufficient to reduce the value of the collateral, the banks should be asked to stop their acts of collateral. Reduce the value of collateral, the banks should ask the mortgagor restore the value of collateral, or provide and reduce the value of the collateral. Pursuant to "guarantee" the relevant provisions of the banking consortium preservation of the exercise of the right to include stop prejudice against and excluded the right to request, the right to request restitution and damages, such as the right to request. Of course, even in the property business again set a security interest, with banks still the priority for repayment of the exercise to protect their claims.
4, the consortium the right to mortgage the priority debt service. When the bank debt maturity and also the reasons for non-bank enterprises do not implement the settlement of the claims, the banks can exercise the right of priority debt service. Banks and enterprises according to law can negotiate a discount to collateral, or the consortium auction, the sale price after its Priority. In addition to prior agreement, the consortium secured the area and in the interest, mortgage banking consortium the right to exercise the charges. The consortium if the subject of mortgage processing, echo or mixed cases, mortgages and the effectiveness of the processing, and echo of the mixture.
5, the consortium with other unsecured general security interest in the coexistence of treatment. Banks should try to limit collateral enterprises in the consortium set up after the consortium will re-set the individual property security interests of other acts. When the consortium and the general unsecured mortgage or pledge the right to co-exist in the same property, if the same person, then they do not conflict in the two is not the same person, the consortium mortgages and other security interest in setting its priorities Order to determine its effectiveness, setting the first priority security interest in the settings in the security interest, set at the same time the proportion of claims accepted by the settlement. However, the consortium secured a lien on the property exists, the effectiveness of priority lien on the collateral effect of the consortium (lien in possession Liu Zhiwu, Liu Zhiwu knowing that the consortium has set up a mortgage with the exception).
China's Civil Law of the consortium mortgages
China's "security" Article 34, paragraph 1, stipulates: "The following property can be secured: (a) who secured all the ground for housing and other crops; (b) the mortgagor all machinery, transport vehicles and other property; ( C) the mortgagor in accordance with the law of the state-owned power to dispose of the land use rights, housing and other ground for crops, (4) mortgagor in accordance with the law of the state-owned power to dispose of the machinery, transport other property, (5) were secured by the contractor in accordance with the law Fabao Fang agreed to mortgage the barren hills, Huanggoushan, Huang Qiu, wasteland and other wasteland of land use rights (6) can be secured in accordance with the law of other property. "Paragraph 2 of that article:" mortgagor property can be included in the preceding paragraph Be secured. "Here" be secured, "whether it refers to the consortium mortgage» Some scholars believe that "mortgage together," the consortium is not secured, but the common collateral or narrow the enterprise mortgages. (((Some scholars believe that "mortgage together," a consortium collateral.
In fact, the "guarantee" the article 34 paragraph 2, of "collateral together" is not common security, not a floating security. Common security and the consortium of different mortgages, it is the subject of a number on the right to set up a number of unsecured creditors the same common security, set the number of mortgage assets is independent of each other, not the same as the consortium secured a number of sets of property A whole with a secured creditor. However, "with mortgage" also clear that the consortium of non-mortgage, it does not specify the consortium's main mortgage, the subject of features, such as setting and exercise.
It was also the basis of the Supreme People's Court of Justice explained to the consortium that China has not secured the way of security. March 26, 1994 to the Supreme People's Court of Shandong Province Higher People's Court pointed out in the letter of approval: "In a number of creditors of the debtor's circumstances, the debtor will be secured all of its assets to one creditor, thus the loss of the debtor to perform other The ability of debt, a violation of the legitimate rights and interests of other creditors, according to "People's Republic of China General Principles of Civil Law" Section 4, Article 5 of the provisions, should be found invalid. "Approval for this, I think we should correctly understand its meaning. It is mainly directed against the debtor by a certain disposition of its property damage and for the benefit of creditors, did not deny the existence of the consortium collateral. First, the consortium will not mortgage companies all property collateral to creditors, if the enterprises will be part of their property to other unsecured creditors do not damage the interests of the creditors, it is entirely possible and secondly, we are fully in the enterprise property may be located on the first The consortium mortgage, and then set up the other way of security.
In short, although the true sense of the mortgage business consortium in China's system has not really established, but the law and in practice does not deny that the consortium form of collateral exist. Therefore, in practice, we can use such a special way of collateral.
Mortgage banking consortium in collateral in the use of business
Through the above analysis, we can see that the Bank in its mortgage business in the need to introduce new collateral, and the consortium is also applicable mortgage market and the economic development and not for China's law and practice prohibited by a more Facilitate the collateral, so the banks collateral in the business it should have full attention. Below the consortium to an analysis of mortgage loans in the banking business of significance, role, and in practice should pay attention to the problem.
(A) of bank loans secured by the consortium in the mortgage business of the significance and role of
Mortgage with a consortium of banks operating principle of security. In front of our analysis of the commercial banks in the course of business in the attention of profit-making and mobility at the same time, the assets must also pay attention to the safety of principle. Therefore, when banks in the lending business will be considered a security capacity. If the consortium mortgages, the banks without worrying about the process of financing large-scale enterprises lack the ability to guarantee the phenomenon. Because the mortgage business and property of a whole (the consortium) to effectively secured bank debt, and the composition of the consortium of banks agreed to a non-general can not be separated from the consortium in the. Is the property of both companies will once again mortgage the future or not the return of corporate loans, the banks can exercise the right of priority debt service. This bank creditors will have a reliable guarantee. Also in line with a consortium mortgage banking operating profit principle. Enterprise was after more bank financing the production and operation can go on smoothly, the capital flow faster, business-effective, and will also be able to return earlier bank loans. Bank funds flow speed, high-profit-making will.
Enterprises, especially large enterprises, form a consortium to provide mortgage financing secured access to a lot of convenience. The consortium will be mortgage business and property as a whole, this way we can give full play to the security of property value and enhance their security capabilities. Because the property is a business enterprise integral part of the property, if combined with each other, coordinate with each other, then we can play its greatest effectiveness. In particular, the full development of market economy, enterprises need to finance more and more, the financing needs of large enterprises with more and more. If the creation of the security in accordance with the traditional way, a single far from the value of the collateral and the value of the collateral, such as bank loans will not be able to provide effective security. In the absence of a suitable property to provide specific guarantees, a consortium mortgage companies will be able to effectively make up for the lack of security capabilities, the banks will be able to more confidently loans. Moreover, enterprises in their property consortium set on the mortgage, can give full play to the property value. Enterprises in the day-to-day production and business activities can continue to use their security and property (although such use is limited by the banks), which on the normal production and operation of enterprises less affected.
In short, the consortium is secured in giving full play to its security value and use value on the basis of both the providers of funds to meet the requirements, but also meet the financing needs of a very effective way of collateral.
(B) the consortium banks in the process of collateral should pay attention to some of the problems
Although the consortium of banks charging method is very favorable, but the security settings in the consortium, in the course of the exercise, is very vulnerable to some problems. For example, in funding can be secured on the issue of the scope of the property, some of the legal requirements will often can not mortgage the property as an integral part of the consortium banks to provide enterprises in the property set on a mortgage, if not the necessary publicity measures, Then companies may also set the property on the other security interest when corporate behaviour is sufficient to reduce the value of business property, claims against the banks, the banks have not been effective measures to limit, and so on. These are likely to affect the realization of creditor banks. Below on the specific consortium of banks in the mortgage process should pay attention to some aspects.
1, the consortium secured the right settings. "Security" section 38 provides: "mortgages and mortgage people should be in written form the conclusion of the contract." Therefore, banks and enterprises should be made in writing to the consortium secured the contract to set mortgage. In accordance with the "guarantee" the provisions of section 39, should be documented in the contract the following: the main creditor secured the type and amount of debt the debtor to the period; the composition of the consortium, type, scope and ownership; consortium mortgage Secured claims; parties agreed on the need of other matters. The parties can also make corrections in future other than the provisions of the preceding paragraph.
Bank signed a contract with the enterprises should also pay attention to the requirements of mortgage companies to register in order to obtain publicity effect. Some property required by law to be registered, then the banks and property companies should be required to register. Some property of the parties are free to choose whether to register. No registration of a mortgage is not against a third person effect. China's "security" in accordance with the type of collateral requirements for registration. According to the provisions of section 42 to set the ground without the use of the right to mortgage the land, from the issuance of land use rights certificates of land management departments to register with city real estate or township (town) and village enterprises, such as building the plant collateral , By the local people's governments above the county level departments under the registration of mortgages to the forest, from trees above the county level departments in charge of registration of the aircraft, vessels, vehicles secured by the registration department of transport equipment registered with the enterprise's equipment and Other movable property secured by the property is located in the industrial and commercial administration departments registration. In accordance with this provision, the consortium should be secured to the main industrial and commercial administration departments registered in other auxiliary of the registration office. The reason why these collateral to registration, first made to prevent duplication of mortgage collateral value less than the amount of borrowing, damage to the interests of creditors. As mortgage registration information is open to the public, to allow inspection, copying or reproduction, in the mortgage contract signed before the bank could be given to relevant departments search, thus avoiding the duplication of mortgages. The second is for the debt service, because the law must be registered without collateral may not be registered against a third person, so the debt service, registered in the first unregistered debt service, are registered by the sequence of compensations. Order by the same proportion of the debt service.
In addition, according to foreign practice, banks should choose a legal personality of the mortgage business consortium signed the contract, and not natural persons, partnerships and other illegal organizations signed. Because of the legal personality of the business enterprises need to be consistent with the "Company Law", it can not be arbitrary punishment of their own property. For example, the company's capital companies to the three principles (that is, determine capital, capital maintenance and capital unchanged) constraints, the company continues to exist, the value of its assets would not have changed much, so the impact on the bank claims it even smaller.
2, a consortium. According to "guarantee" relevant regulations, real estate, personal property and rights, can be used to mortgages. At the same time banks in the signing of the contract, paying particular attention to the following property shall not mortgage: land ownership; arable land, house foundation, Ziliu Di, the retention of all the mountains, and other collective land use rights (except as otherwise provided in the law); schools, kindergartens, hospitals and other public welfare to For the purpose of the institutions, social organizations, educational facilities, health facilities and other public facilities; ownership, the right to use unknown or disputed property, was closed down in accordance with the law, detention, monitoring the property in accordance with the law shall not be secured by copyright and other property, Patents, trademarks and other intellectual property rights in the spirit. If the consortium contains the property, then the mortgage on the property is null and void.
3, the consortium of preservation. After the establishment of security in the consortium, the banks should pay attention to the operation of enterprises, especially enterprises to mortgage the property punishment. Mortgage because the agreement does not transfer possession of the collateral, mortgages were still on the mortgage of possession, use, income and punishment. Banks and businesses can request signed a written contract, the consortium agreed enterprises in the property may not be re-mortgage or pledge.
When the mortgage's conduct is sufficient to reduce the value of the collateral, the banks should be asked to stop their acts of collateral. Reduce the value of collateral, the banks should ask the mortgagor restore the value of collateral, or provide and reduce the value of the collateral. Pursuant to "guarantee" the relevant provisions of the banking consortium preservation of the exercise of the right to include stop prejudice against and excluded the right to request, the right to request restitution and damages, such as the right to request. Of course, even in the property business again set a security interest, with banks still the priority for repayment of the exercise to protect their claims.
4, the consortium the right to mortgage the priority debt service. When the bank debt maturity and also the reasons for non-bank enterprises do not implement the settlement of the claims, the banks can exercise the right of priority debt service. Banks and enterprises according to law can negotiate a discount to collateral, or the consortium auction, the sale price after its Priority. In addition to prior agreement, the consortium secured the area and in the interest, mortgage banking consortium the right to exercise the charges. The consortium if the subject of mortgage processing, echo or mixed cases, mortgages and the effectiveness of the processing, and echo of the mixture.
5, the consortium with other unsecured general security interest in the coexistence of treatment. Banks should try to limit collateral enterprises in the consortium set up after the consortium will re-set the individual property security interests of other acts. When the consortium and the general unsecured mortgage or pledge the right to co-exist in the same property, if the same person, then they do not conflict in the two is not the same person, the consortium mortgages and other security interest in setting its priorities Order to determine its effectiveness, setting the first priority security interest in the settings in the security interest, set at the same time the proportion of claims accepted by the settlement. However, the consortium secured a lien on the property exists, the effectiveness of priority lien on the collateral effect of the consortium (lien in possession Liu Zhiwu, Liu Zhiwu knowing that the consortium has set up a mortgage with the exception).
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