★ Case replay (1)

Natural person A and natural person B are good friends. Party A needs to borrow 1, yuan from Party B for expanding the store, and Party B asks Party A to provide a guarantee. Party A pledges his Audi car to Party B, and Party B asks Party A to drive it back because he can't drive. After Party A borrows 1, yuan from natural person C, and pledges the car to Party C.. C took possession of the car. The Audi car is worth 5, yuan. During the possession of Party C, because Party D rented the car from Party C, Party C signed a lease contract with Party D without Party A's consent. Ding lost the car because of illegal driving, which caused a dispute.

★ Consultation

1. Is the pledge contract between Party A and Party B effective in this case? Why?

2. What is the legal relationship between Party A and Party C? Does C have the right to rent the car? Why?

3. Who can Party A claim for the loss of this car? Why?

★ Case analysis

1. Not effective. The pledge contract takes effect when the pledged property is handed over to the pledgee for possession.

according to article 64 of the security law, the pledgor and the pledgee shall conclude a pledge contract in writing, and the pledge contract shall take effect when the pledged property is handed over to the pledgee for possession. In this case, a pledge contract was signed between Party A and Party B, although it was an expression of the true meaning of both parties, and it did not violate the provisions of the law and harm the interests of others. The value of the pledge exceeded the amount of the secured creditor's rights, but the pledge contract only had the establishment requirements, but it did not have the entry into force requirements, because the entry into force of the pledge contract was based on the pledgee's possession of the pledge, and Party B gave up the possession of the pledge, so the pledge right of Party B did not take effect.

2. There is a legal relationship of pledge between Party A and Party C.. C has no right to rent the car. The pledge is a security interest, and the pledgee does not enjoy the right to use and benefit from the pledge, unless it is necessary to preserve the value of the pledge. Therefore, Party B has no right to rent the car.

as mentioned above, the pledger A provides the pledge guarantee for the creditor C with its own property, and both parties sign a pledge contract, and deliver the pledged Audi car to C. The pledge between Party A and C takes effect, and there is a legal relationship of pledge between Party A and C.. After the establishment of the legal relationship of pledge, the property ownership of the pledged property still belongs to the pledgee, and the pledgee only enjoys the possession of the pledged property. According to Article 93 of the Interpretation of the Guarantee Law, the pledgee uses, leases or disposes of the pledged property without the pledgee's consent during the existence of the pledged property, so if the pledgee causes losses, the pledgee shall be liable for compensation. From this, it can be inferred that the pledgee does not enjoy the right to use, lease or dispose of the pledged property during the duration of the pledge. In this case, as the pledgee, C did not have the right to lease the pledged Audi car to Ding without the consent of Pledger A..

3. claim rights from party C .. If the pledgee rents the pledged property to the pledgee without authorization and causes losses, it shall be liable for compensation according to law.

as mentioned above, during the existence of the pledge relationship, the pledgee only enjoys the possession of the pledged property, but does not enjoy the right to use, lease or dispose of it. Unauthorized use, lease or disposal of the pledged property is an act that infringes the rights of the pledgor. If losses are caused to the pledgor due to this act, the pledgor shall bear tort liability. In this case, C rented the car without authorization, which caused the lessee to drive illegally and caused the car to be lost. C should be liable to Party A for the loss of the car. After taking responsibility, Party C may claim compensation from Party D..

★ Case Review (II)

Shenzhen Industrial Development Co., Ltd. (hereinafter referred to as "Company C") is a trading company engaged in domestic commercial wholesale and retail business. It was established in December 1999 with a registered capital of 1 million yuan. Company C is the milk general agent of a large domestic milk production enterprise (listed company, hereinafter referred to as "Company Y") in Shenzhen. Company Y has assets of more than 4 billion yuan and annual sales of more than 6 billion yuan. It is a well-run and excellent blue-chip listed company in China.

Company C, as a private enterprise with a relatively late establishment and a small scale of assets and capital, can hardly meet the cooperation needs with Company Y with its own funds. At the same time, they have no other assets that can be used as loan collateral, so it is very difficult to raise funds from outside, and the funding problem has become the bottleneck of the company's development. At this time, Company C proposed to Minsheng Bank to apply for financing with milk as collateral. After understanding the actual demand and operation of Company C, and combining with its upstream supplier, Company Y, and Minsheng Bank Guangzhou Branch, through research and analysis, they boldly conceived and pioneered the warehouse receipt pledge business with milk as the pledge, giving Company C a comprehensive credit line of 3 million yuan, using the form of first ticket and then goods, with the purchased milk as the pledge, and the manufacturer, Company Y, assumed the repurchase responsibility. Since the launch of this business, the sales volume of Company C has nearly doubled, which has well supported the enterprise, solved the problem of insufficient liquidity of the enterprise, and effectively controlled the risks of the bank.

★ Comment

The case is just one of many customers supported by Minsheng Bank's warehouse receipt and movable property financing business. By controlling the enterprise's cargo rights, the logistics and capital flow can operate normally and orderly, which not only supports the development of the enterprise, but also controls the risks of the bank, and truly realizes a win-win situation for both banks and enterprises.

In fact, besides milk, the products involve non-ferrous metals, ferrous metals, listed agricultural products, fuel oil, sugar,

chemical industry, household appliances, automobiles, mobile phones and other industries. The business scope covers the Pearl River Delta, and the credit products include general short-term working capital loans, bank acceptance bills, commercial acceptance bills, import letters of credit and import bills of exchange.

It can be said that the warehouse receipt and chattel financing business has broken the traditional business of unilaterally emphasizing the financial characteristics and industry status of the credit subject and simply making credit decisions based on the isolated evaluation of the credit subject. The focus of its concern is transformed into the risk judgment and control of business processes such as whether the trade background of credit granting is true, whether the powerful related parties can be bound with responsibilities, whether the upstream and downstream situation of the credit granting subject is stable, and whether the pledged products have a market.

★ The chattel pledge clause stipulates

Article 64 The pledger and the pledgee shall conclude a pledge contract in writing.

the pledge contract takes effect when the pledged property is handed over to the pledgee.

article 65 a pledge contract shall include the following contents:

(1) the type and amount of the principal creditor's rights to be secured;

(2) the time limit for the debtor to perform the debt;

(3) Name, quantity, quality and condition of the pledge;

(4) the scope of pledge guarantee;

(5) the time when the pledge is handed over;

(6) Other matters that the parties think need to be agreed.

if the pledge contract does not fully meet the provisions of the preceding paragraph, it can be supplemented.

article 66 the pledgor and the pledgee shall not stipulate in the contract that the ownership of the pledged property shall be transferred to the pledgee when the pledgee is not paid off at the expiration of the debt performance period.

article 67 the scope of pledge guarantee includes the principal creditor's rights and interest, liquidated damages, damages, expenses for keeping the pledged property and expenses for realizing the pledge right. Unless otherwise agreed in the pledge contract, such agreement shall prevail.

article 68 the pledgee has the right to collect the fruits of the pledged property. Unless otherwise agreed in the pledge contract, such agreement shall prevail.

the fruits mentioned in the preceding paragraph shall first be offset against the fees for collecting fruits.

article 69 the pledgee has the obligation to properly keep the pledged property. If the pledge is lost or damaged due to improper custody, the pledgee shall bear civil liability.

if the pledgee can't properly keep the pledged property, which may cause its loss or damage, the pledgor may require the pledgee to deposit the pledged property, or demand to pay off the creditor's rights in advance and return the pledged property.

article 7 if the pledged property is likely to be damaged or obviously reduced in value, which is enough to endanger the rights of the pledgee, the pledgee may require the pledgor to provide corresponding guarantees. If the pledgor fails to provide it, the pledgee may auction or sell the pledged property, and agree with the pledgor that the proceeds from the auction or sale will be used to pay off the secured creditor's rights in advance or be deposited with a third party agreed with the pledgor.

article 71 if the debtor performs the debt at the expiration of the debt performance period, or if the pledger pays off the secured creditor's rights in advance, the pledgee shall return the pledged property.

if the pledgee has not been paid off at the expiration of the debt performance period, it may negotiate with the pledger to discount the pledged property, or auction or sell the pledged property according to law.

after the pledged property is discounted, auctioned or sold, the part whose price exceeds the amount of creditor's rights belongs to the pledgor, and the insufficient part is paid off by the debtor.

article 72 a third party who pledges for the debtor shall have the right to recover from the debtor after the pledgee realizes the pledge right.

article 73 the pledge shall be extinguished due to the loss of the pledged property. Compensation for loss shall be used as pledged property.

article 74 the pledge and its secured creditor's rights coexist, and if the creditor's rights are extinguished, the pledge will also be extinguished.