增信措施擔保化的反思與重構──基于我國司法裁判的實證研究

Reflection and Reinterpretation of Credit Enhancement: Based on the Positive Study of Chinese Judicial Judgment

我國司法實踐中關于差額補足、流動性支持等增信措施有保證合同說、無名合同說、債務加入說和對賭協議說四種學說構造。從《民法典擔保制度解釋》第36條的上下文看，該條文的內容有可能導致司法實踐中將增信措施解釋為保證合同。但增信措施的運用領域複雜多樣，應根據其交易結構、交易習慣和行為目的進行意思表示解釋。在結構化金融和信托管理計劃中使用增信措施，并不存在被擔保的主債權，不需要按照保證合同解釋。資產管理業務中的增信措施起到合法的保底作用，也不宜解釋為保證合同。即使在一般的金融交易領域，增信措施有避免擔保被計入企業財務報告、上市公司信息披露、保證合同各項限制性規則等意義，于此應尊重當事人的意思自治，將增信措施解釋為獨立的無名合同。如果增信措施的保證意思表示明顯，則當然要適用保證的規則。如果增信措施被解釋為無名合同而非保證，也可以考慮類推適用保證合同的規則，包括保證合同主體資格的限制、保證合同的書面形式、公司對外擔保的決議，以及保證中的債權轉讓或債務人變更的後果等規則。但是，關于保證的從屬性、保證責任範圍、一般保證推定、保證期間、保證人援引主債務人抗辯事由等規則，不宜類推適用。

In the judicial practice of China, there are four theories which attempt to interpret the essence of credit enhancements, including Suretyship Contract, Innominate Contract, Debt Joining and Valuation Adjustment Mechanism. From the context of Article 36 of Interpretation of the Supreme People’ s Court of the Application of the Relevant Guarantee System of the Civil Code of the People’s Republic of China, it is easy to interpret credit enhancements as suretyship contract which is misleading in judicial practice. In fact, the applicable occasion of credit enhancements is so complex and diverse that it should be interpreted according to its transaction structure, transaction habits and legal transaction’s purposes. There is no guaranteed principal credit when the credit enhancements are used in structured finance and trust management schemes, so that it does not need to be interpreted in accordance with the suretyship contract. Meanwhile the credit enhancements play a lawful and minimum guaranteed function in asset management business and should not be interpreted as a suretyship contract either. Even though in the field of general financial transactions, the credit enhancements have the significance of avoiding guarantee from being included in corporate financial reports, information disclosure of listed companies, and various restrictive rules of suretyship contract, in order to respect the autonomy of the parties concerned, it should be interpreted as an independent innominate contract rather than others. If the credit enhancements express the meaning of surefyship obviously, it should directly apply the rules of suretyship. Correspondingly, if the credit enhancements are interpreted as innominate contract rather than suretyship, some rules of suretyship contract could be applied possibly according to analogy application, such as the rules of limitation of subject qualification, the written form requirements, the resolution of external guarantee of the company, the consequences of the assignment of credit or modification of debtor in guarantee and so on. However, it isn’t appropriate to apply some rules by analogy such as the subordination of suretyship, the scope of suretyship liability, the ordinary suretyship presumption, the prescription of suretyship, and the defense of the principal debtor invoked by the surety.