保证期间与诉讼时效关系新探

保证期间与诉讼时效决定着保证人的责任存在与否以及债权人权利能否实现,涉及到债权人和保证人的自身经济利益。我国的保证期间实际上肩负着两个任务,它既是债权人向保证人行使权利的时间限制,也是债权人向债务人行使权利的时间限制。债务届期后,债权人要在保证期间内,先向债务人主张,不按时向债务人主张权利,保证人免责。在对债务人执行完毕后而未完全受偿时,债权人还要在保证期间内再对保证人主张,不按时向保证人主张,保证人同样免责。在期间内向保证人主张之后,才开始计算保证合同的诉讼时效。     

A Next Step in Debt Enforcement: the Merger of Debt Help and Debt Collection

Since the 1990s, each Member State of the European Union designed a policy that infused the liberal American fresh start policy into its own social institutions and legal culture. Especially in countries with a civil law tradition, the legal position of the consumer has improved. The paradigm of lifelong liability of debts has been replaced by a form of limited liability. Discharge of debts has established itself as a firm legal principle in all European jurisdictions. In most European countries, the new approach consists of a combination of legal and extrajudicial instruments. Under the umbrella of the courts, social workers, trustees, and administrators perform a broad range of activities in monitoring and helping debtors. The so-called new-chance approach has dramatically changed the playing field amongst debtors and creditors. The new legal equilibrium worked rather well in most European countries in the 1990s and 2000s. However, the systems are obviously far from perfect as almost all European governments are still fine-tuning their laws. Recently, two innovations have appeared on the European stage: Some Nordic countries have opted for a centralized state-controlled enforcement system, while in the UK, commercial debt management plans were developed, mainly by commercial suppliers. In 2005, the US Bankruptcy Code was changed in favour of the creditors. The 2008 credit crunch and its aftermath present a window of opportunity for the next step in the modernization of debt enforcement policy. I will suggest a merger of the fields of debt relief and debt collection, with a pivotal role for independent trustees.     

外部逆向法人人格否认制度探析

外部逆向法人人格否认指的是债务人滥用股东权利和公司独立法人地位,故意将财产无偿转移给公司法人,或者姐妹公司之间利益输送,’以逃避债务侵害债权人权利时．可以否定公司法人独立人格．使公司在受让财产限度内对债权人承担债务的清偿责任。从我国理论发展币口司法实践的需要来看,《公司法》第二十条所确立的法人人格否认制度适用范围过窄,有必要引入逆向法人人格否认制度．与传统的人格否认制度统一为整体,以更好地保护债权人的利益。     

The Heteronomy of Private Insolvency Proceedings and the Social Structure of Entrepreneurial Activity: a Commentary on Anne Koark's Speech

Private insolvency law in Germany paralyses the ambitious entrepreneurial powers of clients who want to heal the conflict. A better outcome for creditors and debtors is made possible.     

The Phenomenon of “Consumer Insolvency Tourism” and its Challenges to European Legislation

Consumer insolvency tourism, i.e., the relocation of over-indebted natural persons into a Member State granting a more favourable discharge regime from personal debt than the home country, has been focused by media as well as by legal practitioners quite intensively lately. Conflicts arise not only in distinguishing genuine and fictional relocations of the centre of main interest (COMI), but also between the effect of discharge and creditor's perspectives who did not take into account the possibility of considerably more debtor-friendly discharge facilities abroad when issuing the credit. While relocating a corporate COMI to another Member State providing better restructuring conditions will generally benefit both creditor and debtor, the effect of discharge in consumer insolvency procedures leads to less balanced results. It is not controversial that the current practice is in accordance with the wording of the European Insolvency Regulation (EIR). However, little research has been done so far on the question whether the phenomenon itself has been endorsed by the EIR. Even if consumer insolvency tourism is generally not regarded as an abuse of the EIR or of European freedoms, it may still not respect the interests of both debtors and creditors appropriately. With regard to the prospective revision of the EIR, this paper proposes different approaches to balance the interests of debtors and creditors by normative means.     

Changing Directions in Consumer Bankruptcy Law and Practice in Europe and USA

The consumer bankruptcy or, rather, consumer debt adjustment, is a fairly recent phenomenon in continental Europe. In the nineties, a number of European countries introduced judicial institutions in order to alleviate an excessive debt burden carried by consumer debtors. In addition to the court proceedings, the European jurisdictions often provide the debtor with debt counselling services, supervision, and payment requirements. In the United States, on the other hand, discharge of debt has been an established principle of bankruptcy law since the late 19th century, and bankruptcy is frequently used by consumer debtors. However, in the US, as well as in Canada, debtors are increasingly encouraged to opt for a payment plan. There seems to be a certain convergent trend between the two different legal cultures. Paradoxically, at the same time scholars have pointed out that the variance in local cultures seems to be a main factor in explanations of how debtors choose either a direct discharge or a payment plan. This finding gives us reason to consider the interplay of counselling and other pre-trial measures and its effect upon the rights and duties of debtors.     

Causes and effects of consumer bankruptcies: a cross-cultural comparison

Data for this study were collected during 1988 through surveys conducted in Canada, Japan, Scotland and the United States. The overall objectives of the study were to determine differences in factors influencing decisions to file bankruptcy, expectations from bankruptcy and impact of bankruptcy filing on debtor's life in each country. It was found that over 50% of debtors in all countries except the United States (46%) identified ‘too much borrowing’ as a reason for having to file for bankruptcy. Most of the debtors in each country agreed that bankruptcy provided a ‘fresh start’. In addition, U.S. and Canadian debtors also indicated that filing for bankruptcy had a positive influence on their health status, family relations and the employment status. The impact of bankruptcy for Japanese debtors was rather harsh, resulting in family problems, health problems, suicides and running away from home. To help reduce the growth in bankruptcy and halt repeat bankruptcies, a multi-level effort focusing on lending practices, borrowing practices and bankruptcy procedures is needed.     

Hard currency indebtedness of the developed socialist countries

In recent years the problems of the indebtedness of the communist countries have been driven somewhat into the background by the high foreign indebtedness of many developing countries and the attention attracted by the balance of payments crises in Brazil and Mexico. Yet there are many indications that the need for the socialist debtor nations to adjust their balance of payments policy has not lessened but, to a large extent, simply been deferred. It is therefore not unlikely that the 1980s will witness a new need to solve the problems of those nations and their creditors in the West.     

Changing Definitions of Fresh Start in U.S. Bankruptcy Law

Consumer bankruptcy law in the United States has been distinguished by its commitment to the fresh start concept, enabling the debtor to discharge indebtedness and begin a new economic life. In this paper recent developments respecting four important limitations on the scope of the fresh start are examined. The four limitations are: (1) the debtor must give up non-exempt property; (2) in some parts of the country debtors are effectively required to complete 3 to 5 year debt repayment plans (called Chapter 13 plans) before receiving a discharge; (3) certain debts are "excepted" from discharge; and (4) many rights of secured creditors in collateral are preserved despite discharge.The author concludes that, with respect to the first three limitations, debtor's rights have been restricted over the past 15 years approximately. In the conclusion possible reasons for these restrictions in scope of the debtor's fresh start are discussed. The author discusses the tremendous increase in consumer bankruptcy filing rates in the United States but concludes that the best evidence indicates that increased filings are not a good reason to restrict the scope of the fresh start. He suggests that one important factor for increasing limitations on the fresh start has been a reduced political commitment to values that historically have justified the granting of a discharge to consumer debtors.     

Effects of Foreign Institutional Ownership on Foreign Bank Lending: Some Evidence for Emerging Markets

Despite the large literature on developed countries, little is known about the interactions between corporate governance, foreign ownership, and foreign bank lending in developing countries. Using data from five Latin American countries from 2001 to 2008, we provide one of the first pieces of evidence of how foreign ownership affects the loan cost of borrowers in emerging markets. We find that in terms of foreign bank lending, the cost of debt financing is significantly higher for firms whose largest shareholder is a foreign institutional one. The results support the hypothesis that because of potential agency conflicts between shareholders and creditors, having block institutional shareholders tend to increase the borrowers’ debt burden. There is further evidence supporting this agency conflict hypothesis as we find that the effects of large institutional shareholders on borrowing costs become larger (smaller) when the conflicts are aggravated (mitigated).     

Debt reduction: the basis and shape of a new strategy

The burden of past restructuring of the external debt of developing countries has been distributed asymmetrically among creditors owing to the lack of incentives for voluntary debt reduction. “New creditors” have been deterred from lending voluntarily because their claims would inevitably be added to a mountain of bad debt. Therefore new ways of reducing debt and debt servicing must be found. Our authors suggest a process of concerted debt reduction designed to ensure that all the creditor banks involved play an equal part.     

The stock of external sovereign debt: Can we take the data at ‘face value’?

The stock of sovereign debt is typically measured at face value. Defined as the undiscounted sum of future principal repayments, face values are misleading when debts are issued with different contractual forms or maturities. In this paper, we construct alternative measures of the stock of external sovereign debt for 100 developing countries from 1979 through 2006 that correct for differences in contractual form and maturity. We show that our alternative measures: (1) paint a very different quantitative, and in some cases also qualitative, picture of the stock of developing country external sovereign debt; (2) often invert rankings of indebtedness across countries, which historically defined eligibility for debt forgiveness; (3) indicate that the empirical performance of the benchmark quantitative model of sovereign debt deteriorates by roughly 50% once model-consistent measures of debt are used; (4) show how the spread of aggregation clauses in debt contracts that award creditors voting power in proportion to the contractual face value may introduce inefficiencies into the process of restructuring sovereign debts; and (5) illustrate how countries have manipulated their debt issuance to meet fiscal targets written in terms of face values.     

Niedrige Zinsen — gesamtwirtschaftliche Ursachen und Folgen

Due to the financial crises from 2008 to 2012, unconventional monetary policy caused an environment of record low interest rates around the world. Maintaining the low interest rate policy might be reasonable for the ECB in the short run in order to fight the fragmentation of the financial market and the risk of defl ation in the Eurozone. Some authors argue that permanently low interest rates lead to wrong incentives in the financial market for debtors and creditors alike. They fear potential risks for fiscal policy and financial stability in Germany and recommend macroprudential measures beyond the Basel III framework and a beginning exit of the ECB from its unconventional monetary policy. Others warn against overburdening monetary policy. They find rather that effective financial market regulation and proper fiscal rules and institutions are required to secure financial market stability and the sustainability of public debt and that a premature exit from accommodating monetary policies would do more harm than good. They argue that monetary policy alone will not solve Europe’s problems. The differing recommendations are mainly based on differing assessments of the European business cycle.     

Corporate Governance and the Cost of Capital: An International Study

This study shows that firms with good corporate governance are consistently associated with both lower cost of equity and cost of debt capital in an international setting. The association between corporate governance and the cost of equity is more pronounced in countries with strong legal systems, extensive disclosure practices, and good government quality. However, the relation between corporate governance and the cost of debt is stronger in countries characterized by weak legal protection, low transparency, and poor government quality. The differential relations can be attributed to asymmetric payoffs received by creditors and shareholders.     

Consequences of the debt crisis

The indebtedness of the developing countries to foreign creditors which has expanded rapidly over the past few years rose by a further 18% last year and by the end of the year had reached the estimated level of $626 billion. The debt servicing for this sum amounted to $131 billion.¹ The rescheduling operations required as a result of the accumulating payment difficulties reached a volume of $40 billion. According to the Mexican Minister of Finance, the restructuring of Mexico's foreign debts alone was the largest multilateral support operation in modern financial history.²     

Consumer bankruptcy in Utah (USA): who files and why?

This study examined consumer debtors who filed for bankruptcy and their reasons for filing in Utah, the U.S. state that ranked first in household filing rate in 2002–2004 and consistently ranks in the top ten of the 50 states. The purpose of the study was to determine the demographic characteristics of debtors and reasons for filing. Data were collected during 2004–2005 via survey from 508 debtors. The debtors reported employment problems, medical expenses, divorce or other family problems, as well as trouble managing their finances and overuse of credit cards. More than half of the debtors owed medical providers. Debtors were more likely to report a reduction in income than job loss. Self‐employed persons were over represented. Respondent debtors are less educated, less likely to be married and less likely to own a home compared with Utahns and other Americans. Contrary to expectations, debtor households were smaller than the state average, which may be due to the young age of debtors. Results suggest that in order to reduce the bankruptcy rate in Utah, consumer educators should target renters, adults with less than a college education, divorcing persons and small business owners. Utah's mandate for a personal finance graduation requirement should be implemented early in the secondary school curriculum.     

Legal and Institutional Determinants of Factoring in SMEs: Empirical Analysis across 25 European Countries

Weak protection of the rights of financiers intensifies agency problems in SME financing, inhibiting the optimal provision of credit necessary to grow and innovate. We use a survey data set of 4,348 SMEs from 25 European countries to analyze whether the use of factoring as a form of SME financing is less dependent on low quality of laws and institutions. We do so analyzing whether the use of factoring by SMEs differs across countries due to differences in the legal protection of creditors. Our findings indicate that firms operating in countries with legal environments that weakly protect the rights of creditors, with political instability or high enforcement costs, are more likely to use factoring. Managers of riskier and opaque companies operating in such inefficient environments can use the results of this study to better understand that there are suitable options to complement bank financing. Managers who seek loans can use the results to diversify their financing structure through the use of factoring. Since factoring can be used as a complement to bank loans or as a substitute for bank financing, it is important that policy makers take our results into account when revising policies concerning access to external financing.     

Ethical issues in bankruptcy: A Jewish perspective

The ethical issues involved in bankruptcy affect the debtor, the creditor and the society in which they operate. Facing the debtor is his responsibility to pay back the loans and credit extended to him while the creditor has to decide whether or not to press his legal rights, irrespective of the consequences to the debtor. Society will have to determine to what extent, if any, it is prepared or obligated to fund the rehabilitation of the debtor and those employees, whose employment is terminated as a result of the bankruptcy. These issues will be determined according to the value structure of the particular souly in which debtor and creditor operate. This paper views the issues in a Jewish perspective. Debtors are considered to always be liable for their debts and there is a moral shame attached to bankruptcy, except in those cases where it is caused by natural disasters. While creditors are taught and encouraged to voluntarily waive their rights, this is considered charity with all its negative overtones. The courts are obligated to review the debtors assets and sell them, if necessary, to meet the creditors loans, leaving only basic necessities for minimal living of the debtor and his family. Society however, including the creditor, a part of the group, are obligated to fund the rehabilitation of the debtor either through its interest-free loan, charity or the provision of alternative employment. These may be funded out of communal taxes. Dr. Meir Tamari Formerly Senior Lecturer in Corporate Finance, Bar Illan University. Until recently Chief Economist of the office of the Governor of the Bank of Israel (Israel's Central Bank). Presently Director of the Institute for Ethics in Economics, Jerusalem. Author of With All Your Possessions; Jewish Ethics and Economics Life.     

Finanzielle Repression — ein Instrument zur Bewältigung der Krisenfolgen?

Financial repression committed by central banks has been put forward as a means to secretly reduce the real burden of high public debts. Financial repression has allegedly played an important role in the impressive reduction of the US debt ratio after World War II. A mix of conventional budget consolidation and rapid growth was the main driver in this relative debt reduction with a minor role for financial repression. But does financial repression really exist? The authors express different opinions on evidence for this concept. Those authors who find that there are indicators of financial repression fear redistributive tendencies between debtors and creditors and high opportunity costs in the form of savings and investment distortions. Therefore, financial repression is not a “cure” for the high public debts amassed in the euro area during the recent sovereign debt and banking crisis. Furthermore, the high sovereign debts in the euro area may threaten economic development and impose high costs on society. Therefore, reducing these debts is politically highly relevant, and fiscal policy should be characterised by a modest reduction in government spending and/or tax increases, combined with a policy promoting economic growth. Macroprudential regulations should supplement this financial policy.     

When secured and unsecured creditors recover the same: The emblematic case of the Tunisian corporate bankruptcies

Bankruptcy is an essential screening mechanism for developing economies. This paper focuses on the way bankruptcy is managed in Tunisia, a country characterized by the importance of its banking sector. We collected data on a set of bankrupt firms (1995–2009). We address several questions. Do the Tunisian bankruptcy procedures generate substantial overall recoveries? Are the secured creditors (mostly banks) well-enough protected under bankruptcy, and do they influence the courts' decisions? To which extent the creditors compete together? The highest recoveries are found mostly under reorganization procedures. Yet, despite a high level of competition between the classes of claimholders, the secured creditors' recovery rate remains similar to one of the unsecured creditors. Last, the court's decision to liquidate/reorganize the debtor seems not influenced by the structure of claims. The likely consequences on development are twofold: higher risks of capital misallocation/credit rationing, and stronger incentives for the banks to prioritize informal workouts.