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股本贷款是指银行向准备与其他企业(包括外商)合资办企业的借款人所发放的用于借款人在合资企业中的认缴出资的一种贷款。从贷款币种区分可分为人民币和外汇股本贷款,从借款对象分,可分为联营股本贷款和中外合资企业中方股本贷款。股本贷款在八、九十年代曾由中国银行、农业银行等国有商业银行大量发放,它是国家作为吸引外资,发展外向型经济的一项重要举措而推广使用的。但近来在司法实践中有人对股本贷款的法律效力提出了质疑,认为这种贷款违反了国家关于企业出资、外汇管理等方面的法律法规,属于非法的无效贷款。如果这一观点成立,无疑将给曾大量发放过股本贷款的几家国有商业银行的权益造成很大影响。因为无效贷款的直接后果将是担保人很可能被免除担保责任(当然前提是担保人无过错),同时贷款合同约定的部分利息也可能作为非法收入而被没收。由于股本贷款不但在过去曾大量发生,而且在近期人民银行还专门制定了一个《中外合资、合作经营企业中方投资人新增资本贷款管理办法》,继续支持股本贷款的发放,因此探讨股本贷款的法律效力问题就更具有现实意义。
Equity loans refer to a type of loan issued by a bank to a borrower who prepares joint ventures with other enterprises (including foreign ones) for subscription of the borrowers in a joint venture. Divided from the loan currency can be divided into RMB and foreign exchange equity loans, from the loan object points, can be divided into joint-stock equity loans and Sino-foreign joint ventures Chinese equity loans. Equity loans were heavily distributed by state-owned commercial banks such as Bank of China and Agricultural Bank of China in the 1980s and 1990s. They are promoted by the state as an important measure to attract foreign capital and develop an export-oriented economy. Recently, however, some people have questioned the legal validity of equity loans in judicial practice, believing that such loans violate the state laws and regulations on enterprise investment and foreign exchange management, and are illegal and invalid loans. If this view is established, it will undoubtedly have a significant impact on the rights and interests of several state-owned commercial banks that have granted large amounts of equity loans. Because the direct consequence of the invalid loan will be the guarantor is likely to be exempt from the guarantee (of course, provided the guarantor is not fault), and part of the interest of the loan contract may also be confiscated as illegal income. As equity loans have not only occurred in the past, but also the PBC has recently formulated a “Measures for the Administration of New Capital Loans for Chinese Investors in Joint Ventures and Joint Ventures” and continued to support the issuance of equity loans. Therefore, The issue of legal validity has more practical significance.