“内保外贷”模式的法律结构分析

Analysis of the Legal Structure of “Offshore Financing Against Domestic Guarantee” Model

"内保外贷"交易结构中存在三组法律关系,即:境内申请人与境内商业银行之间的反担保法律关系,境内商业银行与境外金融机构之间的担保法律关系,境外金融机构与申请人境外关联公司之间的借贷法律关系。由于"内保外贷"法律关系主体的境内银行与境外金融机构经常是指国内商业银行与其境外分公司,而根据我国《商业银行法》的规定,商业银行的分支机构没有独立法人资格,因此本交易中担保主体不适格是最大的法律隐患。

There are three groups of legal relationship in the deal structure of ＂offshore financing against domestic guarantee＂, namely： the counter guarantee legal relationship between the applicant and the domestic commercial banks, the guarantee legal relationship between the domestic commercial banks and overseas financial institutions, the borrowing legal relationship between overseas financial institutions and the applicant＇s overseas affiliates. Due to the fact that the main body of legal relationship of ＂offshore financing against domestic guarantee＂ is domestic Banks or overseas financial institutions which are often referred to as the domestic commercial bank and its overseas branch, and the fact that the commercial bank branches have no independent legal person qualification as stated by the regulations in ＂Commercial Bank Law＂ in our country, therefore, the biggest inadequate legal risk in this deal is the in-qualified guarantee subject.