The phenomenon of "non-performing loans" masks the risk of non-performing assets, which seriously affects the normal operation of financial institutions, the management of banking supervision departments and the central bank, and is not conducive to leadership decision-making and analysis. Irregular private lending has seriously affected the financial order, and also brought heavy debt repayment burden to farmers.
Risk response measures: standardize private lending according to law, provide special services for farmers, improve rural credit guarantee mechanism, and improve rural credit guarantee mechanism.
I. There is a guarantor in the loan contract.
Article 39 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) stipulates that if the parties to the main contract agree to replace the old with the new, the guarantor will not bear civil liability when he knows or should know. Where the new loan and the old loan are the same guarantor, the provisions of the preceding paragraph shall not apply. That is, when the guarantor of the new loan contract and the original credit contract is the same person, or the guarantor is different, but the guarantor knows or should know that the purpose of the new loan is to "borrow the new and return the old", the guarantor assumes the guarantee responsibility at this time, otherwise, the guarantor can be exempted from the guarantee responsibility. Therefore, under the new credit contract, the bank should ensure the written consent of the guarantor for the loan and use.
Second, the loan contract is secured by mortgage.
Can Article 39 of the Interpretation of Guarantee Law be applied to the field of mortgage guarantee? According to the Supreme People's Court's judgment, if the loan contract is mortgaged by the property of a third party, and the third party does not know the purpose of the new loan, the mortgage guarantee liability may be exempted. However, if the third party is also the mortgage guarantor of the original credit contract, or the mortgaged property is the debtor's own property, the above opinions are not applicable. At the same time, if the new credit contract is mortgaged by the property of a third party, and the third party goes bankrupt within one year, the people's court may revoke the mortgage guarantee according to the provisions of the Enterprise Bankruptcy Law.
Three. Matters needing attention in mortgage registration under the condition of borrowing new and returning old.
Under the new credit contract, the secondary mortgage registration is directly carried out on the original collateral. Due to the liquidation of the original credit contract, the original mortgage was eliminated, so the secondary mortgage registration directly became the first level. At this time, the decompression of the original mortgage and the registration of the new mortgage should be closely linked. To prevent the existence of a window period, resulting in the collateral being sealed up by other creditors or mortgage registration. However, before the signing of the new credit contract, if there are other mortgage rights enjoyed by non-banks on the collateral, the above measures are not applicable. If the value of collateral exceeds the assessed value, the bank should cancel the original mortgage registration first, and then re-apply for a new mortgage registration. Similarly, the two should be closely linked for the same reason.
In addition, when the original credit contract is changed from loan to new loan, the status of collateral should also be investigated, which should be determined according to the operating conditions of the borrower, guarantor and mortgagor. If the collateral or pledge is sealed up, the bank shall not handle the business of changing loans into new ones or changing loans into old ones with borrowers on the principle of strict prudence.