对“以贷还贷”借款合同效力的思考

Thought on the Effectiveness of Loan Contract about "Return of Old Loan With New Loan"

中国人民银行在《关于借款合同有关法律问题的复函》中对“以贷还贷”借款合同所作的有效认定,违背了《商业银行法》和《借款通则》有关借款规定的基本精神,该行为实施的后果不仅会严重侵害担保人的合法权益,而且为金融监管机构对商业银行信贷资产的有效监管设置了巨大障碍,干扰了国家货币政策的正确制定,纵容了商业银行的短期经营行为。在银监会加大对银行业监管力度的今天,我们应当通过立法形式对“以贷还贷”借款合同的效力作出否定性规定,以使商业银行的贷款业务健康地向前发展。

In its 'Reply to Relevant Legal Issues on Loan Contract', the Chinese People's Bank acknowledges that the loan contract about 'return of old loan with new loan' is effective, which has violated the basic spirits of 'Commercial Bank Law' and 'Loan General Regulations'. The execution of such act not only infringes severely the legal rights and interests of guarantor, but also sets a big obstacle for financial supervisory organs to execute effective surveillance on the loan assets of commercial banks. Moreover, this will disturb the proper formulation of national monetary policy and connive the shortsighted management behaviors of commercial banks. Today when the China's Banking Regulatory Commission strengthens the surveillance on banking industry, we should make a denial to the effectiveness of such loan contract about 'return of old loan with new loan' in legislative form so that the loan business of commercial banks can go forward in a healthy way.