银行贷款担保合同法律问题研究
发布时间：2018-11-20 08:40
【摘要】：在民商事案件中,金融案件一直居高不下,其中贷款合同纠纷案件一直位于金融案件之首,大部分贷款合同纠纷都会涉及担保问题,借贷纠纷常常与其担保纠纷纠结在一起,形成一个共同诉讼。借贷纠纷的法律关系相对明晰,争议的焦点也多集中在担保纠纷上面,这从最高院公报的案例中可见一斑。因此,笔者主要通过归纳分析方法、演绎推理方法、比较分析的方法研究贷款担保合同纠纷,试图抛砖引玉,给银行部门防范法律风险,寻找一条可行之路。 本文主要采用了归纳分析法、演绎法、比较分析法、法解释学、案例分析的方法论述了银行贷款担保中常见的几个问题,并提出这些问题产生的原因,最后论述了法律风险控制措施。 本文分为五个部分。 第一部分是概述。主要介绍了贷款担保合同的性质、特征及银行贷款担保和一般担保的区别。 第二部分介绍了银行贷款担保诉讼中常见的问题,主要有以下几种:保证期间性质的争议、保证期间约定不明和没有约定情形下的认定、一般保证和连带责任保证约定不明时的认定、借新还旧的处理、《物权法》对银行抵押权的影响、《公司法》对银行担保实现的阻碍及救济途径。这部分主要采用了归纳分析法、比较分析的方法梳理了各种观点,然后得出自己的观点。 第三部分分析了银行贷款担保存在问题的法律原因及社会原因。法律原因方面,主要是由于《担保法》的不完善,《物权法》侧重保护真实权利人的利益而忽视了对银行抵押权的救济,《公司法》在扩大公司自治的同时也对银行实现担保产生了影响。 第四部分提出了对银行贷款担保诉讼中法律风险的控制措施:第一,司法的角度,法院在审理贷款担保诉讼时,应坚持一种理性的思维以平衡各方当事人的利益,正确适用法律,在实体上和程序上正确审理此类案件;第二,银行的角度,银行应加大对抵押物及担保公司章程的审查力度,在诉讼时效内及时向债务人和保证人催收债务,密切关注债务人的财务状况,切实防范企业逃废债务。 结论部分,对整个文章的观点进行梳理总结,对自己的观点再次进行强调。
[Abstract]:In civil and commercial cases, financial cases have been high, among which loan contract disputes have always been at the top of the financial cases, most of the loan contract disputes will involve the issue of guarantee, and loan disputes are often entangled with their guarantee disputes. Form a joint action. The legal relationship of the loan dispute is relatively clear, and the focus of the dispute is also on the guarantee dispute, as can be seen from the Supreme Court communiqu 茅. Therefore, the author mainly through the inductive analysis method, deductive reasoning method, comparative analysis method to study loan guarantee contract disputes, trying to throw a brick on the bank sector to guard against legal risks, to find a feasible way. This paper mainly uses the methods of inductive analysis, deductive analysis, comparative analysis, legal hermeneutics, case analysis to discuss several common problems in bank loan guarantee, and puts forward the causes of these problems. Finally, the legal risk control measures are discussed. This paper is divided into five parts. The first part is an overview. This paper mainly introduces the nature and characteristics of loan guarantee contract and the difference between bank loan guarantee and general guarantee. The second part introduces the common problems in the bank loan guarantee litigation, mainly as follows: the nature of the guarantee period dispute, the guarantee period of unclear agreement and no agreement under the circumstances of the determination, When the agreement between general guarantee and joint and several liability guarantee is unclear, the new and old treatment, the influence of Real right Law on bank mortgage, the obstacle to the realization of bank guarantee by Company Law and the way to remedy it. This part mainly uses the inductive analysis method, the comparative analysis method combs each kind of viewpoint, then obtains own viewpoint. The third part analyzes the legal and social reasons of the bank loan guarantee problems. In terms of legal reasons, mainly due to the imperfection of the guarantee Law, the Real right Law focuses on the protection of the interests of the real right holder and neglects the relief to the bank mortgage right. The Company Law not only expands the autonomy of the company, but also influences the bank to realize the guarantee. The fourth part puts forward the control measures of the legal risk in the bank loan guarantee litigation. First, from the judicial point of view, the court should adhere to a rational thinking to balance the interests of the parties. The correct application of the law and the proper substantive and procedural handling of such cases; Second, from the perspective of banks, banks should strengthen the examination of collateral and articles of association of guarantee companies, timely collect debts from debtors and guarantors within the limitation of action, pay close attention to the financial situation of debtors, and effectively prevent enterprises from evading or cancelling debts. In the conclusion part, the author summarizes the views of the whole article and emphasizes his own point of view again.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923
本文编号：2344434
[Abstract]:In civil and commercial cases, financial cases have been high, among which loan contract disputes have always been at the top of the financial cases, most of the loan contract disputes will involve the issue of guarantee, and loan disputes are often entangled with their guarantee disputes. Form a joint action. The legal relationship of the loan dispute is relatively clear, and the focus of the dispute is also on the guarantee dispute, as can be seen from the Supreme Court communiqu 茅. Therefore, the author mainly through the inductive analysis method, deductive reasoning method, comparative analysis method to study loan guarantee contract disputes, trying to throw a brick on the bank sector to guard against legal risks, to find a feasible way. This paper mainly uses the methods of inductive analysis, deductive analysis, comparative analysis, legal hermeneutics, case analysis to discuss several common problems in bank loan guarantee, and puts forward the causes of these problems. Finally, the legal risk control measures are discussed. This paper is divided into five parts. The first part is an overview. This paper mainly introduces the nature and characteristics of loan guarantee contract and the difference between bank loan guarantee and general guarantee. The second part introduces the common problems in the bank loan guarantee litigation, mainly as follows: the nature of the guarantee period dispute, the guarantee period of unclear agreement and no agreement under the circumstances of the determination, When the agreement between general guarantee and joint and several liability guarantee is unclear, the new and old treatment, the influence of Real right Law on bank mortgage, the obstacle to the realization of bank guarantee by Company Law and the way to remedy it. This part mainly uses the inductive analysis method, the comparative analysis method combs each kind of viewpoint, then obtains own viewpoint. The third part analyzes the legal and social reasons of the bank loan guarantee problems. In terms of legal reasons, mainly due to the imperfection of the guarantee Law, the Real right Law focuses on the protection of the interests of the real right holder and neglects the relief to the bank mortgage right. The Company Law not only expands the autonomy of the company, but also influences the bank to realize the guarantee. The fourth part puts forward the control measures of the legal risk in the bank loan guarantee litigation. First, from the judicial point of view, the court should adhere to a rational thinking to balance the interests of the parties. The correct application of the law and the proper substantive and procedural handling of such cases; Second, from the perspective of banks, banks should strengthen the examination of collateral and articles of association of guarantee companies, timely collect debts from debtors and guarantors within the limitation of action, pay close attention to the financial situation of debtors, and effectively prevent enterprises from evading or cancelling debts. In the conclusion part, the author summarizes the views of the whole article and emphasizes his own point of view again.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923
【引证文献】
相关期刊论文 前1条
1 富媛;;银行贷款担保合同法律问题的探讨[J];法制与经济(下旬);2012年05期
，本文编号：2344434
本文链接：https://www.wllwen.com/falvlunwen/gongsifalunwen/2344434.html
