1、 1 外文翻译 原文 Study on the Small and Middle-Sized Enterprises Credit Guarantee Legal System Material urce: magazine of politics and law,2009(3) Author: Assael Henry 1. Actuality of Chinese SMEs credit guarantee legal system Both the Guarantee Law of the Peoples Republic of China enacted in 1995 and the
2、 judicial interpretation of the guarantee law enacted in 2000 are adapted to credit guarantee, but the inherent deficiencies of the guarantee law can not offer good legal criterions for the SEMs credit guarantee. The Promotion Law of Chinas Small and Medium Sized Enterprises enacted at Jan 1 2003 is
3、 the first special law about SMEs, and it is the law with the highest power layer which can be followed to establish the credit guarantee system for SMEs at present. Comparing with guarantee law, it has large advancement, but it still lacks in the maneuverability, and the policies and regulations ma
4、tching with it still dont come into being. Because the credit guarantee institutions of SMEs exist by the form of the legal person, so the modified “the Company Law” is applied, but the guarantee institutes also possess characteristics which are different to general companies, so the company law can
5、 not be completely applied. Though the new “Property Law” perfects the shortages in the guarantee law, but it still can not completely regulate the behaviors of credit guarantee. Since 1999, relative departments successively enacted some administrative rules, local rules and policy documents aiming
6、at credit guarantee and promoting the development of the guarantee industry. The existing credit guarantee legal rules of China lacking in professionl, systematic, perfect and healthy SMEs credit guarantee legal system are too dispersive and disorder, and it doesnt still form the system, and the leg
7、islation layer is low, which make Chinese credit guarantee system lack in powerful legal guarantees. 2. Problems existing in Chinese SMEs credit guarantee legal system 2.1 Problems of capital financing In the “Instructional Advices”, the guarantee capitals and operation charges of 2 SMEs credit guar
8、antee mainly depend on governmental capitals, and the guarantee charge incomes are only supplements. At present, the capital financing system in China adopts the multiple-mode which takes the governmental capitals as the main body and adopts the common financing mode including financial institutions
9、 and other castes and civilian multiple financing modes. The governmental guarantee is in the absolutely main status in the whole guarantee system. For the guarantee institution quantity and the guarantee loan sum, the governmental guarantee share is too much higher, and the civilian capital guarant
10、ee proportion is seriously deficient. Thus capital financing structure will produce two sorts of conflict. First, as the macro control and market manager, the government needs to utilize its main financial power to supervise and control the market, and it has no enough financial power to support the
11、 credit guarantee system of SMEs, and on the contrary, many civilian capitals lack in proper investment direction. Second, the quantity of SMEs is increasing continually and the scale is continually expanding, but the guara ntee capitals of the government are limited, and the SMEs credit guarantee w
12、hich gives priority to the governmental investment has not fulfill the actual demand of the SMEs financing guarantee. Therefore, the existing SMEs credit guarantee system can not make the government investments exert their efficiencies and the civilian investment can not become into the effective su
13、pply, which induces the serious unbalance of the demand and the supply in the SMEs financing and guarantee market and the low total efficiency. The financing difficulty in the SMEs development is mainly induced by the insufficient civilian capital guarantees. 2.2 Problems of risk prevention At prese
14、nt, China mainly adopts following measures to prevent the risks of SMEs credit guarantee, i.e. the credit guarantee limitation management mechanism, the proportional guarantee implementing in guarantee institutions, the counter-guarantee and there-guarantee system. But some problems exist in these s
15、ystems. First, one of tenets of the credit guarantee institution is to disperse the risk of SMEs loans, and it doesnt assume all loan risks. The credit guarantee institution, bank and SMEs should assume the risks together, and the single institution should not assume all risks. Or else, the “moral r
16、isk” of the bank will occur. Therefore, the credit guarantee institutions should guarantee the risk according to certain proportion of the loan. But in the practice, the bank occupies the predominant status in the credit guarantee, and according to the guarantee contract offered by the bank, 3 all g
17、uarantee institutions will implement sum guarantees. In this way, under the situation without risk and responsibility, the bank will obtain the loan interests, but the credit institutions will assume large guarantee risks only depending on slender guarantee charges. The risk asymmetry will increase
18、the risk of the guarantee institutions, and seriously restrict the developments of the guarantee institutions and the guarantee industry. Second, the article four in the guarantee law definitely regulates that “when the third person offers guarantee to the creditor for the debtor, he can require the
19、 counter-guarantee”, and the “Instructional Advices” also regulates that the enterprise accepting the guarantee service should offer securities with same amount to the guarantee institutions, which are legal proofs for the guarantee institutions to require counter-guarantee for the guaranteed enterp
20、rises. But it is not feasible to offer counter-guarantees for all SMEs accepting guarantee services, because the properties of SMEs which can be bonded are not too much, and the matching counter-guarantee condition may refuse some enterprises with good foregrounds and breach the original idea of the
21、 SMEs credit guarantee system, and the third person can not be found to offer guarantees, so the essential problem of the difficult financing will occur again, and the SMEs guarantee institutions become into the “scapegoat” of the loaner, and the function of developing the financing can not be reall
22、y exerted. Third, at present, China only regulated the re-guarantee system principally in relative policies, and the re-guarantee system is not definitely regulated on the legislation layer. In the practice, one national re-guarantee institution is absent, which not only seriously limit the guarante
23、e ability of single guarantee institution, but induce the unequal cooperation relationship between the guarantee institution and the bank, so in the guarantee practices, many guarantee institutions can not only assume sum guarantee, but also assume 100% suretyship of joint and several liability. Tha
24、t is relative with the deficiency of the credit ability of the guarantee institutions. Therefore, it is very important to establish the national guarantee institutions and comprehensive and effective re-guarantee system. 2.3 Problems of guarantee institution 2.3.1 The guarantee market system is not
25、complete and the quantity of the guarantee institution with single variety is short Some places only have policy SMEs credit guarantee institutions and have not mutual guarantee institutions and commercial SMEs guarantee institutions generated 4 in the market. Some places have not SMEs credit guaran
26、tee institutions, and the re-guarantee institutions have not been founded up to the present. The mechanisms of operation cooperation and risk dispersion among various guarantee institutions still have not formed. 2.3.2 The market orientation of the guarantee institution is not specific Considering t
27、he benefit and development, most guarantee institutions of China put the profits on the important position, and they always incline to the enterprise with many assets mortgages when selecting the guarantee enterprises, and some enterprises which most need the guarantees can not obtain the guarantee
28、because they can not fulfill the effective mortgages of the bank. 2.3.3 The capital scale of the guarantee institution is small, and the guarantee ability is deficient congenitally At present, almost all capital sources of Chinese guarantee institutions come from the financial appropriate funds of t
29、he government, and most local finances in China can not fulfill the demands of SMEs to the guarantee funds, which will induce a series of problems such as small capital scale of the guarantee institution, insufficient guarantee ability, the bad anti-risk ability, high financing cost and single opera
30、tion sort. 2.3.4 The guarantee institutions lack in standard interior management system and risk management mechanism Chinese SMEs guarantee institutions universally lack in many interior management systems such as the guarantee security system, the counter-guarantee system, the re-guarantee system
31、and the collective auditing system, and the risk management systems such as standard operation mechanism, interior risk control mechanism, risk alarming mechanism and compensation transfer mechanism. The administrative order guarantee and human feeling guarantee happens often, and they will reduce t
32、he credit of the guarantee institutions and increase the risk. In addition, there are not organizational structures and supervision institutions restricting each other in the interiors of the credit guarantee institutions, which can not supervise the guarantee institutions and their behaviors. 2.4 P
33、roblems of credit system 2.4.1 The important status of the integrity principle has not be established in the market economy construction Chinese “General Provisions of the Civil Law” and “Contract Law” all regulate the integrity as one basic principle, but in the judicial practice, because it is not
34、 a 5 concrete legal rule, it mainly depends on judgers free appreciation, and the legal compulsory function can not be fully exerted. So the restriction power that only depends on parties self-discipline to standardize his behavior is limited. 2.4.2 The legal systems about the credit management are
35、deficient The guarantee institution is the professional credit guarantee institution, and whether the information are exact, complete and timely is very important for the guarantee institutions. At present, the acquirement, evaluation, development and issuance of the credit information resources lac
36、k in legal references, and the legal regulations about the credit industry are still deficient. Because the credit information of enterprises and individuals are not opening, that seriously influences the quality of the credit report, and the guarantee institutions can not obtain enough guaranteed e
37、nterprise information. The problem of the information asymmetry makes the credit guarantee industry become into one of industries with the largest risk. 3. Perfecting the SMEs credit guarantee legal system of China The establishment of Chinese SMEs credit guarantee faces the deficiency of the system
38、 environment, which are mainly embodied in lacking in healthy legal systems and regulations according with the requirement of the market economy, so many credit guarantee activities can not depend on laws under many situations. Therefore, we need quicken the legislation process, adjust corresponding
39、 legislation contents and form a set of complete and uniform guarantee laws to standardize SMEs credit guarantee activities. 3.1 Unveiling the “SMEs credit guarantee administrative measures” as soon as possible The countries which emphasize the development of SMEs all have established the SMEs credi
40、t guarantee laws, such as the “credit guarantee funds law” of Korea and the “SMEs credit guarantee association law” of Japan, and China should enact a special law about the SMEs credit guarantee as soon as possible. Though Chinese “SMEs credit guarantee administrative measures” (“measures”) is brewe
41、d for a long time, but it still has not enacted. To solve above problems, the “measures” should include following contents. 3.1.1 Credit guarantee institution In the SMEs credit guarantee system, the SMEs credit guarantee institutions are in the core statues, and they are the policy support institut
42、ions that the governments indirectly support the developments of SMEs, and they belong to the 6 non-financial institutions, and they can not engage in the financial operation and finance credit, and they should be supervised by the governmental department. The “measures” should regulate the market a
43、dmittance condition, legal status, exit system, operation range, operation flow and the legal form of the credit guarantee institutions. And the legal form should take the business entity as the principle, and take the enterprise entity and juridical association as the supplements. The credit guaran
44、tee institutions should be operated according to the complete marketization. 3.1.2 Service objects The service objects of the SMEs credit guarantee system are not all SMEs, and it should aim at the SMEs which can not offer the mortgages required by the bank and possess development potentials. Japane
45、se SMEs credit guarantee plans mainly take the governmental industrial policies in every term as the references, and offer guarantees for the items which accord with the industrial policies. China can refer to this way, constitute corresponding SMEs guarantee plan according to the economic developme
46、nt demands in different terms, and support the SMEs according with the present industrial policies to embody the legislation attention and exert the economic lever function of the credit guarantee. 3.1.3 Capital financing system The capital sources of the SMEs credit guarantee system should form the
47、 financing mechanism with multiple channels and quantities. For the SMEs credit guarantee institutions, except for the governmental investment, we should actively encourage the civilian capitals to participate in order to improve the capital financing structure, expend the guarantee ability of the c
48、redit guarantee institution, balance the supply and demand of the SMEs financing guarantee market, and exert its highest efficiency. 译文 中小企业信用担保法律制度 资料来源 : 政法杂志 2009(3) 作者：阿赛尔 .亨利 1. 中国中小企业信用担保法律制度 的 现状 7 无论是中华人民共和国担保法 中对 1995 年共和国的司法解释还是 2000年颁布的担保法中的信贷担保 ，都有 担保法的固有缺陷 ， 无法 为 中小企业信用担保提供良好的法律规范 。 该 法
49、是 在 2003 年 1 月颁布第一个关于中小企业的专门法律 ， 它具有最高 的法律 权力 。 其次， 是目前 可以建立 的 中小型企业信用担保体系 。 与担保法相比，它 有 很 大的进步 ， 但仍缺乏可操作性 ， 它的政策和法规仍然匹配 不应运而生 。 由于中 小企业信用担保机构的存在形式 ， 所以 修改后的 “ 公司法 ” 是适用的，但担保机构也具有不同的特点，是 一般的公司法律不能完全适用 。 尽管新 “ 物权法 ” 完善了 在法律 保障方面 的短缺，但它仍然不能完全规范信用担保行为。 自 1999 年以来 ， 相关部门先后颁布了一些行政法规 ， 地方性法规和政策文件 ， 旨在 完善 信贷 保障和促进行业发展 。现有的中国信贷保证法律规则 系统缺乏 professionl 系统 ， 完善和健全中小企业信用担保的法律过于分散 ， 秩序混乱， 仍不能 形成体系 ， 立法层次低 。 这使得中国信用担保 系统缺乏有力的法律保障。 2. 中 国中小企业信用担保法律系统存在的问题 2.1 资本的融资问题 在 “ 教学的几点建议 ” 中， 保证资金和中小企业信用担保运作费用主要取决于 政府资金，并保证收费收入 不能
