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就单一贷款担保合同而言,担保纯属于私法问题,但放在中小企业和商业银行关系的大环境中,担保这一民事行为便成为制约经济发展的因素。隐藏于担保制约融资表象背后的根源仍为信息失灵导致的信任危机,这种困境并非全由当事人平等协商、意思自治可以解决。因此,在法律制度设计上需要应对商事发展“概念统一化与操作简单化”的需要,明确规定动产抵押制度,并为其实践提供可行的操作路径,为中小企业融资提供新的机遇。
In the case of a single loan guarantee contract, the guarantee is purely a matter of private law. However, in the context of the relationship between SMEs and commercial banks, guaranteeing this civil act becomes a factor that restricts economic development. The hidden reason behind the appearance of guarantee-constrained financing is still the crisis of confidence caused by the failure of information. Such a predicament can not be solved through equal consultation by all parties and the autonomy of will. Therefore, the legal system needs to deal with the need of commercialization, “concept unification and simplification of operation”, clearly stipulate the movable property mortgage system, and provide feasible operational path for its practice so as to provide new opportunities for the financing of SMEs.