202 1 1 5, a judgment of the supreme court was screened in the circle of friends of non-performing assets practitioners.
On June 30, 2020, 65438+February 30, the Judgment Document Network announced that the second-instance civil judgment of the loan contract dispute between Yunnan Branch of China Huarong Asset Management Co., Ltd. and Kunming Chenggang Industry and Trade Co., Ltd. came from the Supreme Court.
Huarong Yunnan Branch invested 40 million yuan to forge the creditor-debtor relationship between Zhongtian Company and Chenggang Industry and Trade Co., Ltd., and then Huarong Company bought this so-called "bad creditor's right" and lent Zhongtian Company 96 million yuan. However, the creditor Cheng Gang Industry and Trade Co., Ltd. refused to acknowledge the creditor's right, and the three parties went to court. The Supreme Court finally ruled that Huarong's creditor's rights purchase contract was invalid.
AMC buys "bad" creditor's rights and lends in disguise.
The contract was declared invalid.
Referee's score
1. The transfer of creditor's rights in this case is actually a financing loan, and the false intention is invalid and should be treated as a hidden civil legal act. The Banking Supervision Law stipulates: "No unit or individual may set up a banking financial institution or engage in the business activities of a banking financial institution without the approval of the banking supervision institution of the State Council." This regulation involves public order such as financial security, market order and national macro-policy, and is mandatory. The business scope of the financial asset management company involved does not include loan business, so its foreign loan is also invalid.
2. When the guarantor of this case signed the guarantee agreement, he knew that the transfer of creditor's rights in this case was actually a loan relationship. After the creditor obtained the loan, the guarantor claimed that the loan relationship and the guarantee contract were invalid, which violated the principle of good faith and was at fault. Therefore, the guarantor shall bear the guarantee responsibility according to the guarantee agreement.
Judgment of
20 14 13 From May to May 20th, Zhongtian Company and Chenggang Company fabricated the creditor's rights of Chenggang Company, with the amount of/kloc-0.09 million yuan, which was enjoyed by Zhongtian Company.
On February 28th, 20 14, Zhongtian Company gave its company seal, special seal for contract, special seal for finance and personal seal of legal representative Dai Yanmei to Huarong Company for safekeeping. Huarong Company and Zhongtian Company jointly manage the above seals, and all seals used by Zhongtian Company must be signed by Huarong Company staff. 0030 10 records that from May 20 13 to May 2 1 4, Zhongtian Company made several internal transfers to the company, all of which were signed by Li X, an employee of Huarong Company.
According to the records in the Registration Form for the Use of the Financial Seal of Zhongtian Company (20 14) presented by the iron and steel company, the signer of the printing site involved in the Registration Form for the Use of the Official Seal of Zhongtian Company (20 14), the resolution of the shareholders' meeting and other materials is Li X, a staff member of Huarong Company, and marked with "Financing from Huarong 109".
Huarong Company knows the fact that "Zhongtian Company and Chenggang Company realized the fictitious creditor's rights case through cash conversion", which is very possible.
The evidence presented by Cheng Gang Company in the second trial further confirmed that Huarong Company knew and participated in the fictional creditor's rights involved. In addition, according to Item 3, Paragraph 2 of Article 2 of Yunnan Y2XXXXXX- 1 Creditor's Rights Transfer Agreement signed by Huarong Company, Zhongtian Company and Chenggang Company, "the designated account of the transferor (Zhongtian Company) is used to deposit the house purchase money paid by the transferee (Huarong Company), and the transferee keeps the seal of its personnel and supervises the funds in the account." After the transfer of creditor's rights, the transferee's supervision of the transferor's account does not conform to normal trading practices, which further proves that Huarong's real intention is not that the acquisition case involves bad debts. Therefore, there are many legitimate reasons for the original judgment that Huarong's acquisition involves non-performing assets.
Huarong Company claims that the unknown creditor's rights involved are fictitious and cannot be established. Zhongtian Company is the actual user of 96 million yuan in this case, and has repaid the loan principal and interest successively.
Article 19 of the Banking Supervision and Administration Law stipulates: "No unit or individual may establish a banking financial institution or engage in the business activities of a banking financial institution without the approval of the banking supervision and administration institution of the State Council." This regulation involves public order such as financial security, market order and national macro-policy, and is mandatory. Huarong Company is a financial asset management company, a non-bank financial institution, and its business scope does not include loan business. Huarong Company engaged in loan business without approval, which violated the above provisions, and the loan relationship with Zhongtian Company was invalid. The court of first instance only thinks that some clauses are invalid because the interest agreed in disguise is obviously too high, and the applicable law is indeed improper and should be corrected.
Three. There was an error when Chenggang Company completed the confirmation of creditor's rights and debts numbered Y2XXXXX-9 in Yunnan.
Cheng Gang Company participated in the fictitious creditor's rights of 65.438+0.09 billion yuan, and signed a mortgage agreement with Huarong Company while knowing that the creditor's rights transfer between Zhongtian Company and Huarong Company was untrue; After Zhongtian Company obtained a loan of 96 million yuan and paid part of the principal and interest, it claimed that the loan relationship and guarantee contract were invalid, which violated the principle of good faith and was at fault. After the contract is deemed invalid because the expression of will is untrue and violates the mandatory provisions, the people's court shall reasonably allocate civil liability among the parties according to the principle of good faith, so that the dishonest parties cannot benefit from the invalid contract. Iron and steel companies should undertake the guarantee responsibility for real debts according to the mortgage agreement.
In addition, under the above conditions, Cheng Gang Company also signed a repayment agreement and supplementary agreement with Huarong Company, which can prove that Cheng Gang Company's true intention is to assume repayment responsibility to Huarong Company. The repayment agreement and supplementary agreement involved in the case did not stipulate that Zhongtian Company would no longer bear the repayment responsibility for Huarong Company, so it should be considered that the repayment agreement signed by Cheng Gang Company constitutes a coexisting debt, and Zhongtian Company bears joint and several repayment responsibilities for Huarong Company. The court of first instance found that Zhongtian Company and Cheng Gang Company shared the responsibility for repayment, and there was no fault.
Four. When the cases of mortgage agreement and guarantee agreement were concluded, Dai Yun and Cui Lihua were at fault.
Dai Yun, the legal representative of Chenggang Company, knew that there was a loan in the name of creditor's rights transfer between Zhongtian Company and Huarong Company as financing to avoid mandatory legal effect.
Contract, also signed a guarantee agreement with Huarong company. Cui Lihua and Dai Yun are husband and wife. When Cui Lihua signed the guarantee agreement, she knew that the transfer of creditor's rights between Zhongtian Company and Huarong Company was actually a loan relationship, which was very likely. After Dai Yun and Cui Lihua obtained a loan of 96 million yuan in Zhongtian Company and paid part of the principal and interest, they claimed that the loan relationship and guarantee contract were invalid, which violated the principle of good faith and was at fault. Dai Yun and Cui Lihua shall, in accordance with the Guarantee Agreement, assume the guarantee responsibility for the loan repaid by Cheng Gang Company to Huarong Company.
AMC's acquisition and restructuring revenue accounts for half of the country.
The above case is a typical AMC restructuring business. The income and proportion of its contribution are very large in AMC's bad debt income.
There are two main business models of non-performing assets creditor's rights of asset management companies, one is acquisition and the other is acquisition and reorganization.
Among them, business refers to the bad debt assets obtained by the company from financial and non-financial institutions through bidding, auction, delisting or agreement acquisition. The company classifies assets according to their characteristics, formulates corresponding management strategies, and uses various disposal methods, including debt restructuring, debt-to-equity swap and asset replacement. , enhance the value of assets and realize cash recovery.
The acquisition of restructured non-performing assets mainly comes from non-financial enterprises. At the time of acquisition, the company reached an agreement with creditors and debtors to purchase creditor's rights, and at the same time reached a reorganization agreement with debtors and their related parties. Through a series of reorganization arrangements, such as determining the repayment amount, repayment method, repayment time and secured mortgage, the company helps enterprises to revitalize existing assets, realize the recovery of creditor's rights and realize the target income.
In these two kinds of bad debt acquisitions, class restructuring has always accounted for the bulk. This part of the income also accounts for half of the country.
Cinda's 2020 interim report shows that as of June 30, 2020, among the newly acquired non-performing assets, the acquisition and reorganization category was 30,342.5 million yuan, accounting for 70.3%, up 7 percentage points from the same period of 20 19. According to the interim report, its annualized income reached 9.2%, and the overall income reached 965,438+32.8 million yuan, accounting for 59. 1%.
This part of the business accounts for 5 1.7% of the real estate by industry.
Cinda's 2020 Performance Report
Huarong's 2020 interim report shows that as of June 30, 2020, among the new non-performing assets, the acquisition and reorganization amounted to 69.9408 billion yuan, accounting for 74.6%, down 5 percentage points from the same period of 20 19. This part of the annualized income reached 8.6%, and the overall income reached166.36 million yuan, accounting for 79.6%.
Huarong's 2020 Interim Report
However, the non-performing rate of the acquisition and reorganization business is also very high, which means that the non-performing creditor's rights income of asset management companies depends on the reorganization business on the one hand, but it also brings great losses on the other.
Cinda's interim report shows that the net asset value of the acquired restructuring business is1965438+53.4 million yuan, and the asset impairment rate is 3.53%, and the provision for asset impairment is 1425438+07 billion yuan. Huarong's interim report shows that the total assets of the restructuring business are 36.0225 billion yuan, and the provision for asset impairment is 65.438+83.66 billion yuan, with a provision ratio of 565.438+0%.
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It is understood that there are many cases similar to the above in the affiliated reorganization business of asset management companies, and it is best for both parties to live in peace. If there is any dispute, this precedent of the Supreme Court can be used as a reference.
Related Questions and Answers: Related Questions and Answers: For people in debt, can they borrow a sum of money from institutions or individuals to pay off their debts? This scheme is exactly what many debtors are using, even the first choice.
For example, credit cards of different banks that owe tens of thousands or hundreds of thousands are not paid back. In fact, the best solution in the future is to borrow money from family or relatives, return the credit card, keep the credit information, and then slowly repay the personal loan.
If you have assets such as houses, cars and stocks. It is a natural choice for everyone to find a bank or other institution to mortgage/pledge a loan, or to realize the realization of assets and repay debts directly.
However, this scheme requires the debtor to have strong resource capacity and may not be suitable for everyone.
The reality is that many debtors have been unable to borrow money from relatives and friends, their income is insufficient or unstable, and there are no assets that can be mortgaged and realized, so this scheme cannot be realized.
Because to realize this debt restructuring plan, the debtor's main purpose is nothing more than two, short-term to long-term, or high interest rates to low interest rates.
After the reorganization, all these two costs were transferred to the new creditors. In addition, the new creditor also needs to bear the credit risk of the debtor.
Taking risks requires corresponding guarantees and benefits. Due to the debtor's poor economic situation, the new debt faces a huge risk of default. A rational economic man will not make such a loan decision unless there are huge interests, or a strong system related to it as a guarantee, or not for the purpose of economic interests.
Therefore, in reality, only a few people and organizations may be willing to lend money to the debtor in this case:
First, charitable organizations and individuals whose purpose is to help debtors;
Second, illegal organizations that can use violence as a guarantee for payment;
Third, on the premise of a relatively sound credit system, organizations recognized by the state and engaged in related businesses under the supervision of the state, such as the United States, all have financial institutions specializing in "debt consolidation loans".
In China, none of the above three conditions exist.
Therefore, for people who are in debt, if they have the conditions to refinance, they have already done it without asking.
If you don't have the relevant resource capacity, you can't restructure your debt through this scheme in China for the time being.
Pay attention to the big fish saying debt, and update your answers every day.
Talk about debt problems, solutions, and the things behind the choice.