破产法视野下的企业经营者保证:经济解释与立法进路

Research on Insider Guarantees Issues through the Lens of Bankruptcy: Economic Approach and Legislative Recommendations

企业经营者保证属于一种重要的信贷融资增信安排,其制度初衷在于缓释中小企业财务信息不对称问题并约束内部人的投机主义行为。然而,在当前以国有商业银行占据主导、国有和民营企业信贷融资市场二元化环境下,银行等信贷债权人基于节约信贷尽调成本等目的考虑,往往易于滥用此等经营者保证安排来"架空"有限责任原则,但这却会导致财务风险的过度转嫁,长期以往将使得企业经营者事前投资不足。在其制度成本显著超过其收益的情况下,"此时作为第二重有限责任的个人破产免责机制的引入",替换为"引入作为"第二重有限责任"的个人破产免责机制,将有助于重新平衡其中的利益失衡关系,并促使银行做出负责任的信贷决策。为此,未来我国在个人破产免责规则设计上应秉持"宽严相济"立场,避免反过来提升民营企业的信贷融资壁垒的同时,还有助于更好地帮助企业经营者缓冲商业下行风险,从而改善我国的营商环境。

Theoretically,insider guarantees play fundamental roles in Small-medium Enterprises’s commercial credit arrangements,as it could relieve their financing constraints by mitigating information asymmetry between the enterprises and commercial banks and minimizing the moral hazard associated therewith.Unfortunately,in China where borrowing markets are dominated by the state-owned financial institutions,and large-sized lending banks generally discriminate those non-SOEs by setting different lending requirements,it is highly likely to find that banks would overuse insider guarantees or demand them excessively so as to save costs arising from due diligence at the lending stage rather than examine borrowers more closely.However,these guarantee arrangements effectively reverse the principle of limited liability,causing insiders to bear unlimited-liability risks arising from the corporate’s financial failure or become the ultimate risk-bearer.In the long term,this would make entrepreneurs to underinvest in those projects with net present value when most of them are risk-aversed.Thus,it would be crucial for the policy-makers to introduce bankruptcy discharge,an ex post"limited liability",reaching a harmonized equilibrium that would streamline the borrowing market efficiently and force banks to gather additional borrower-specific information at the lending stage.To maintain the important but fragile balance between entrepreneurs and commercial banks,the legislator shall design a well-functioning bankruptcy discharge mechanism that could complement the practice of insider guarantees,with which entreprenuers could better cushion the risk of financial failure and thus improve our business environment.