项目融资与债权质权

Project Finance and Pledge of Creditor’s Rights

项目融资是一项重要的融资方法,于政府与社会资本合作(public-privatepartnerships,PPP)中运用,更具有如虎添翼之效果,然其风险甚多,担保制度为控制项目融资风险之最佳利器。最高人民法院2015年11月19日发布的53号指导案例,对于污水处理建设—经营—转让(build-operate-transfer,BOT)之项目融资,不但精确掌握项目融资之特征,并阐明污水处理项目收益权系将来金钱债权可以质押,其公示方法为质押登记,且指出其实行方法系由质权人请求法院判令其直接向债务人收取金钱,并对该金钱行使优先受偿权,见解精辟,符合学说及担保物权之近代国际立法趋势,引领物权法之发展,具有重大意义。

Project finance is an important financing model which is wellapplied in Public-Private-Partnership(PPP). It works with great achievements as well as high risks, and the collateral institution plays as safety harbor to project financing. On 19 th of November 2015,the Supreme People’s Court of the People’s Republic of China delivered its Guiding Case No. 53 which is focused on the contract of project finance in a BOT sewage treatment plant in Fuzhou City of Fujian Province. In this Guiding Case not only described precisely the characteristics of project finance but also declared several principles for its application. The Case held that franchising of sewage treatment plants is able to be pledged under the procedure of official registration. Lenders may ask borrowers to pay the principle and interest satisfactorily under court’s injunction and have the priority of claim. This Guiding Case gives us the full picture of project finance and its application in China. Its opinions stay with legal theories and contemporary lawmaking trend of collateral institution in the world. This Guiding Case will take its major position to lead future developments of Property Law in China.