Credit enhancement does not reflect litigation. In judicial practice, the legal nature of narrow credit enhancement measures such as balance supplementary agreement, liquidity support letter, comfort letter and Hao Wei agreement is different. Article 9 1 of Nine Minutes clearly states that if the credit enhancement measures comply with the provisions of the Guarantee Law, the guarantee contract relationship is established; Do not conform to the provisions of the "Guarantee Law", according to the specific content of the commitment document to determine the corresponding rights and obligations to take responsibility.

Article 36 of the Interpretation of Guarantee System further stipulates that the measures of credit enhancement indicate the intention of providing guarantee, and the court shall handle it according to the relevant provisions of guarantee, so as to apply a series of guarantee rules to the liability of the parties, and the parties who issue the promise of credit enhancement can avoid or reduce their liability through the rules of guarantee period, guarantee method and company resolution procedure, which has a great impact on the obligee.

The author searched and studied five typical cases of the Higher People's Court in determining the legal nature of credit enhancement measures in recent two years, with a view to summarizing the corresponding rules and standards for judging whether credit enhancement measures constitute independent contracts, guarantees or debt participation in judicial practice.

Typical referee cases of credit enhancement measures 1

Referee's gist: the content of the credit agreement is not subordinate to the basic creditor's rights and does not constitute a guarantee.

Case index: Hu Minzhong Shanghai Higher People's Court (2020) Hu Xing Chu Zi No.567 other contract dispute case between G Capital Investment Co., Ltd. and Z Bank Co., Ltd.

Main disputes: Baptist Company, as a general partner, set up a Baptist Fund with other limited partners * * *, and limited partners such as Baptist Company signed a Supplementary Agreement to the Partnership Agreement with Z Fortune Company, stipulating that the income generated by the partnership share held by Z Fortune Company takes precedence over the income distribution of any other partner, and the Supplementary Agreement to the Partnership Agreement also clarified the calculation method of the fixed income of Z Fortune Company.

Subsequently, G Capital Company issued a Letter of Compensating the Difference to Z Bank, clarifying that Z Bank subscribed for the priority limited partnership share of the immersion fund through the asset management plan of Z Wealth Company, and G Capital Company promised that within 36 months after the establishment of the fund, a third party would acquire the immersion fund at the set target price and hold 65,438+000% equity of Hong Kong Immersion Company. If the final equity transfer price is lower than the target price, G Capital Company agrees to unconditionally undertake the obligation to make up the difference between the target price and the actual transfer price of equity.