担保合同法律风险及防范

promotion of employment, form a reasonable and orderly pattern of income distribution, build a more fair and sustainable social security systems, medical and health system reform. The plenary, innovation of social governance, must focus on the maintenance of fundamental interests of the overwhelming majority of the people, maximize factors, enhance social development, improving social governance, the interests of national security, ensure that the people live and work, social stability and order. o improve social governance, stimulating social organization, innovative and effective system of preventing and resolving social conflicts, improving the public security system, set up the National Security Council, national security systems and national security strategy to ensure national security. Plenary session, the construction of ecological civilization, you must establish systems of ecological system, using the system to protect the ecological environment. o improve naturalresources asset property right system and use control, red line of delimitation of ecological protection, resources paid use system and ecological compensation system in ecological environment protection management system reform. Plenary session, centering on building a listening party command, can win and having a fine style of the people's army, a strong army under the new situation of the party Goals, restricting the development of national defense and army building is solved outstanding contradictions and problems, innovation and development of military theory, enhance military strategic guidance, improve the military strategy in the new period, building a modern military force system with Chinese characteristics. o deepen the adjustment of personnel system reform in the army, military policy and system reform, promote the development of military and civilian integration depth. Plenary session stressed that comprehensive reform must be to strengthen and improve theparty's leadership, give full play to the core role of the party commands the overall situation and coordinating all parties, improving the party's leading water ... Margin. Challenged the leadership of the Communist Party of China, Marxism-Leninism and Mao Zedong thought by Deng Xiao-ping's flag, replaced by three representatives and the harmonic society. The former Communist Party spirit and social cohesion point of almost all political makeover. Characteristics of socialism public ownership is shifting to private ownership, planned regulation and market regulation, the proletarian regime controlled by the elite. Of universal equality, fairness and basic principles of distribution system is socialist society, however after economic monopolized by powerful, vested interests growemployers do not have the same status, hardly seems fair social distribution. State key protection of capital interests rather than the interests of citizens, had been hits the bottom of the proletariat 担保合同法律风险及防范

一、 担保合同的概念

担保合同是指合同义务人为保证债务人履行债务而向债权人提供一定财产担保的合同。

二、 担保合同一般应规定的条款

根据我国《担保法》规定，担保合同是主合同的从合同，主合同无效，担保合同无效。担保方式为保证、抵押、质押、留置和定金。 （一）被担保的主债权种类、数额； （二）债务人履行债务的期限； （三）担保的方式； （四）担保的范围； （五）担保的期间；

（六）双方认为需要约定的其他事项。 三、 担保合同的漏洞及欺诈

1. 法律禁止担保的机构和单位进行担保。根据《担保法》下列特殊主体不能进行担保:

a.国家机关，但经国务院批准为使用外国政府或者国际经济组织贷款进行转贷的除外。

b.学校、幼儿园、医院等以公益为目的的事业单位、社会团体。 c.企业法人的分支机构及职能部门。 d.银行等金融机构 。

2． 设置虚假的抵押担保，使对方签订正常情况下不可能签订的合同。 合同欺诈人利用担保合同使对方当事人放松警惕，签订正常情况下不可能签订的合同。合同欺诈人往往利用虚假的担保合同获取对方当事人的信任，从而获得利益。

3． 用担保合同达到偷梁换柱的目的。

欺诈行为人利用担保达到’偷梁换柱’的目的，这种欺诈中的主合同的内容是真的，担保合同提供的财产也是真的，只是合同义务人欲通过抵押担保合同将抵押的财产真正抵给债权人折抵主合同中的债务。欺诈人虽没有无偿获得或不平等的获得他人的财产，但其目的实际是促成抵押财产的流通，事实上形成了对另一方的欺诈。

4． 抵押人在一项财产上设置多个抵押权，重复抵押，使抵押财产的价值远远大于被担保的财产价值从而使担保落空。

法律规定一项价值较大的财产可以按次序分别设立不同的债务担保，但设立的抵押其抵押权的价值不能超过抵押财产自身的价值。欺诈人正是利用价值较大的财产可以多次进行抵押，在财产上先后设立多个抵押权并对有关情况进行隐瞒，致使债权人的资产流失，抵押权落空。 5． 欺诈人将无权抵押的财产设抵。

一种情况是设置抵押的主体不合法，提供财产抵押的人并不是财产的所有权人或是对该财产不具有处分权，进行抵押后当财产的真正所有人提出权利要求，虚假抵押将不具有法律效力。另一种情况是，抵押的标的物不符合我国法律的有关规定，为禁止用于抵押的财产或标的物本身就是法律禁止流通物。 6． 对担保未履行法定的手续。

bviously, face China's Socialist system, the Communist Party is not the party. In that case, political chaos has been very tight. Is remodeling or reconstruction, is a correction or a stove. Whether to turn right or left, is back to the source or put forward new political ideas. This is to determine the road problems in China, is also the key out of the deep water of the reform of the economic system. After 18, the new Central collective leadership attaches great importance to political orientation. First, the \cles\ng point, starting from the Central Government's self-restraint, which preaches and pro-image, brought fresh feeling to the community. Secondly, before reform and opening up and reform and opening two periods after non-negative, untying the tangle of the society a long time on this issue. Third, a new generation of party leaders on various occasions to Mao Ze-Dong and Mao Ze-Dong's thought of evaluation has room for manoeuvre, through to the ruling ideology of Mao Zedong thought, is the call of the soul to the Socialist Revolution and construction. Empty talks jeopardize national interests and try again, is an affirmation of Deng Xiao-ping's reform ideas. These strong political signal showing a new generation of political leaders is still keeping to the Socialist road. Four is revisiting the \o Ze-Dong's historical cycle of\ofile anti-corruption and the importance of the Constitution, reorganization is bad style of officialdom, was to civilize people obey the law, while improving the color change of the regime of vigilance. Five is to reform into deeper waters and stressed that top-level design, this is a review on the reform and opening up in the past, is also looking for a way out. Six foreign and Russia closer, the flexible attitude on the issue of the Korean peninsula, Sino-Japanese fishing hardline China on the island out of the \nt\ow profile shadow began to gradually plan development. Signs show that the new leadership began to make a left turn in politics. However, as of right now, not only ideological confusion in the community, the new leadership's thinking is messy. New leaders both stressed the need to implement the Constitution, stressed the need to turn off the power in a cage. Also stresses that Mao Zedong thought cannot be lost, 30 years after the reform and opening up 30 years ago can not deny each other. Both advocate democracy and release \n does not speak of\cal constraints. Neither deny the history of the CPC Central Committee on several issues ...Comrades: today brings together members, mainly in order to provide a platform to Exchange and learn from each other in order to facilitate our work. Just now, we focus on taxation, planning and stability, safety, project construction, typical topics such as private facts presentation and interaction, and towns currently exist in the in-depth analysis of the problems to be solved, to explore new methods to solve the problem. It can be said that summing up the achievement, no grandstanding; analysispromotion of employment, form a reasonable and orderly pattern of income distribution, build a more fair and sustainable social security systems, medical and health system reform. The plenary, innovation of social governance, must focus on the maintenance of fundamental interests of the overwhelming majority of the people, maximize factors, enhance social development, improving social governance, the interests of national security, ensure that the people live and work, social stability and order. o improve social governance, stimulating social organization, innovative and effective system of preventing and resolving social conflicts, improving the public security system, set up the National Security Council, national security systems and national security strategy to ensure national security. Plenary session, the construction of ecological civilization, you must establish systems of ecological system, using the system to protect the ecological environment. o improve naturalresources asset property right system and use control, red line of delimitation of ecological protection, resources paid use system and ecological compensation system in ecological environment protection management system reform. Plenary session, centering on building a listening party command, can win and having a fine style of the people's army, a strong army under the new situation of the party Goals, restricting the development of national defense and army building is solved outstanding contradictions and problems, innovation and development of military theory, enhance military strategic guidance, improve the military strategy in the new period, building a modern military force system with Chinese characteristics. o deepen the adjustment of personnel system reform in the army, military policy and system reform, promote the development of military and civilian integration depth. Plenary session stressed that comprehensive reform must be to strengthen and improve theparty's leadership, give full play to the core role of the party commands the overall situation and coordinating all parties, improving the party's leading water ... Margin. Challenged the leadership of the Communist Party of China, Marxism-Leninism and Mao Zedong thought by Deng Xiao-ping's flag, replaced by three representatives and the harmonic society. The former Communist Party spirit and social cohesion point of almost all political makeover. Characteristics of socialism public ownership is shifting to private ownership, planned regulation and market regulation, the proletarian regime controlled by the elite. Of universal equality, fairness and basic principles of distribution system is socialist society, however after economic monopolized by powerful, vested interests growemployers do not have the same status, hardly seems fair social distribution. State key protection of capital interests rather than the interests of citizens, had been hits the bottom of the proletariat 我国《担保法》对以特定物进行担保的形式要件进行了规定，要求必须履行向法定部门登记的手续，合同自登记之日起生效：

a.以地上定着物的土地使用权抵押的，由核发土地使用权证书的土地管理部门进行登记；

b.以城市房地产或者乡（镇）、村企业的厂房等建筑物抵押的，由县级以上地方人民政府规定的部门进行登记；

c.以林木抵押的，由县级以上林木主管部门进行登记；

d.以航空器、船舶、车辆抵押的，由运输工具的登记部门进行登记；

e.以企业的设备和其他动产抵押的，由财产所在地的工商行政管理部门进行登记。

7. 其他合同陷阱

我国《担保法》中对以保证形式进行担保的情况作了一些特殊规定，应当注意：债权人与债务人协议变更主合同的，应当取得保证人书面同意，未经保证人书面同意的，保证人不再承担保证责任；一般保证的保证人与债权人未约定保证期间的，保证期间为主债务履行期届满之日起六个月，在合同约定的保证期间和前款规定的保证期间，债权人未对债务人提起诉讼或者申请仲裁的，保证人免除保证责任。

四、 担保合同漏洞及欺诈的防范 1． 充分注意抵押财产的合法性。

抵押财产应当可以进入民事流转程序而又不违反法律禁止性规定，抵押物合法性应从以下方面进行考察，如，抵押物是否为法律禁止流通物，是否为根本不能变卖的物品，抵押人是否拥有抵押物的所有权。同时应对担保人的身份进行考察，防止担保人不符合法律规定，致使担保合同无效。 2． 充分注意抵押财产的真实性。

抵押财产应是法律上没有缺陷，真正为抵押人所控制及占有的财产。抵押财产没有其它法律负担，在此之前没有设置过抵押，抵押的价值没有超过抵押财产自身的价值，抵押财产没有设置多重抵押。 3． 充分考虑抵押财产的变现能力

对抵押财产要充分考虑其变卖的能力，即使真实合法的财产其变现能力也会因各种原因降低，从而使债权人的利益受到损失。另外应充分考虑到抵押财产不能变现的可能性，以免出现权利人无力接受该项财产又无法变卖的情况。另外对一些价值虽然很高，但专业性很强的设备等财产应特别注意，由于专业性很强这类财产一般很难进行变现，一般不要接受这样的抵押。 4． 对保证人的资格进行认真考察。

采用保证形式进行担保的情况，对保证人的资信能力及信誉必须进行认真的考察，同时必须应当注意担保人是否为法律限制进行担保的主体，以免出现因担保主体不符合法律规定而使担保无效的情况。

5． 采用抵押担保时应切实办好法律规定的手续。

首先进行担保应当与担保人订立担保合同，合同必须是书面形式。其次，按法律规定应当办理抵押登记的，应按法律规定到不同的登记部门去办理抵押登记手续，抵押合同自登记之日起生效。第三，对法律没有规定办理抵押登记的，为防止合同欺诈，可以到当地的公证机关去办理登记手续。办理抵押登记的优点在于:登记后，抵押物可以对抗第三人的要求；在办理登记的审查中可以发现不良苗头，及时对可能出现的欺诈进行防范。

bviously, face China's Socialist system, the Communist Party is not the party. In that case, political chaos has been very tight. Is remodeling or reconstruction, is a correction or a stove. Whether to turn right or left, is back to the source or put forward new political ideas. This is to determine the road problems in China, is also the key out of the deep water of the reform of the economic system. After 18, the new Central collective leadership attaches great importance to political orientation. First, the \cles\ng point, starting from the Central Government's self-restraint, which preaches and pro-image, brought fresh feeling to the community. Secondly, before reform and opening up and reform and opening two periods after non-negative, untying the tangle of the society a long time on this issue. Third, a new generation of part leaders on various occasions to Mao Ze-Dong and Mao Ze-Dong's thought of evaluation has room for manoeuvre, through to the ruling ideology of Mao Zedong thought, is the call of the soul to the Socialist Revolution and construction. Empty talks jeopardize national interests and try again, is an affirmation of Deng Xiao-ping's reform ideas. These strong political signal showing a new generation of political leaders is still keeping to the Socialist road. Four is revisiting the \o Ze-Dong's historical cycle of\ofile anti-corruption and the importance of the Constitution, reorganization is bad style of officialdom, was to civilize people obey the law, while improving the color change of the regime of vigilance. Five is to reform into deeper waters and stressed that top-level design, this is a review on the reform and opening up in the past, is also looking for a way out. Six foreign and Russia closer, the flexible attitude on the issue of the Korean peninsula, Sino-Japanese fishing hardline China on the island out of the \nt\ow profile shadow began to gradually plan development. Signs show that the new leadership began to make a left turn in politics. However, as of right now, not only ideological confusion in the community, the new leadership's thinking is messy. New leaders both stressed the need to implement the Constitution, stressed the need to turn off the power in a cage. Also stresses that Mao Zedong thought cannot be lost, 30 years after the reform and opening up 30 years ago can not deny each other. Both advocate democracy and release \n does not speak of\cal constraints. Neither deny the history of the CPC Central Committee on several issues ...Comrades: today brings together members, mainly in order to provide a platform to Exchange and learn from each other in order to facilitate our work. Just now, we focus on taxation, planning and stability, safety, project construction, typical topics such as private facts presentation and interaction, and towns currently exist in the in-depth analysis of the problems to be solved, to explore new methods to solve the problem. It can be said that summing up the achievement, no grandstanding; analysispromotion of employment, form a reasonable and orderly pattern of income distribution, build a more fair and sustainable social security systems, medical and health system reform. The plenary, innovation of social governance, must focus on the maintenance of fundamental interests of the overwhelming majority of the people, maximize factors, enhance social development, improving social governance, the interests of national security, ensure that the people live and work, social stability and order. o improve social governance, stimulating social organization, innovative and effective system of preventing and resolving social conflicts, improving the public security system, set up the National Security Council, national security systems and national security strategy to ensure national security. Plenary session, the construction of ecological civilization, you must establish systems of ecological system, using the system to protect the ecological environment. o improve naturalresources asset property right system and use control, red line of delimitation of ecological protection, resources paid use system and ecological compensation system in ecological environment protection management system reform. Plenary session, centering on building a listening party command, can win and having a fine style of the people's army, a strong army under the new situation of the party Goals, restricting the development of national defense and army building is solved outstanding contradictions and problems, innovation and development of military theory, enhance military strategic guidance, improve the military strategy in the new period, building a modern military force system with Chinese characteristics. o deepen the adjustment of personnel system reform in the army, military policy and system reform, promote the development of military and civilian integration depth. Plenary session stressed that comprehensive reform must be to strengthen and improve theparty's leadership, give full play to the core role of the party commands the overall situation and coordinating all parties, improving the party's leading water ... Margin. Challenged the leadership of the Communist Party of China, Marxism-Leninism and Mao Zedong thought by Deng Xiao-ping's flag, replaced by three representatives and the harmonic society. The former Communist Party spirit and social cohesion point of almost all political makeover. Characteristics of socialism public ownership is shifting to private ownership, planned regulation and market regulaton, the proletarian regime controlled by the elite. Of universal equality, fairness and basic principles of distribution system is socialist society, however after economic monopolized by powerful, vested interests growemployers do not have the same status, hardly seems fair social distribution. State key protection of capital interests rather than the interests of citizens, had been hits the bottom of the proletariat 6． 其他预防手段

在合同签订前，应当运用合法的各种调查手段通过不同渠道来核实担保财产的真实性、合法性。抵押权人应当要求所接受抵押财产凭证应一律为原件。对数额较大的不动产要求抵押人提供有关机构所作的资产评估报告。

bviously, face China's Socialist system, the Communist Party is not the party. In that case, political chaos has been very tight. Is remodeling or reconstruction, is a correction or a stove. Whether to turn right or left, is back to the source or put forward new political ideas. This is to determine the road problems in China, is also the key out of the deep water of the reform of the economic system. After 18, the new Central collective leadership attaches great importance to political orientation. First, the \cles\ng point, starting from the Central Government's self-restraint, which preaches and pro-image, brought fresh feeling to the community. Secondly, before reform and opening up and reform and opening two periods after non-negative, untying the tangle of the society a long time on this issue. Third, a new generation of party leaders on various occasions to Mao Ze-Dong and Mao Ze-Dong's thought of evaluation has room for manoeuvre, through to the ruling ideology of Mao Zedong thought, is the call of the soul to the Socialist Revolution and construction. Empty talks jeopardize national interests and try again, is an affirmation of Deng Xiao-ping's reform ideas. These strong political signal showing a new generation of political leaders is still keeping to the Socialist road. Four is revisiting the \o Ze-Dong's historical cycle of\ofile anti-corruption and the importance of the Constitution, reorganization is bad style of officialdom, was to civilize people obey the law, while improving the color change of the regime of vigilance. Five is to reform into deeper waters and stressed that top-level design, this is a review on the reform and opening up in the past, is also looking for a way out. Six foreign and Russia closer, the flexible attitude on the issue of the Korean peninsula, Sino-Japanese fishing hardline China on the island out of the \nt\ow profile shadow began to gradually plan development. Signs show that the new leadership began to make a left turn in politics. However, as of right now, not only ideological confusion in the community, the new leadership's thinking is messy. New leaders both stressed the need to implement the Constitution, stressed the need to turn off the power in a cage. Also stresses that Mao Zedong thought cannot be lost, 30 years after the reform and opening up 30 years ago can not deny each other. Both advocate democracy and release \n does not speak of\cal constraints. Neither deny the history of the CPC Central Committee on several issues ...Comrades: today brings together members, mainly in order to provide a platform to Exchange and learn from each other in order to facilitate our work. Just now, we focus on taxation, planning and stability, safety, project construction, typical topics such as private facts presentation and interaction, and towns currently exist in the in-depth analysis of the problems to be solved, to explore new methods to solve the problem. It can be said that summing up the achievement, no grandstanding; analysis

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