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互保是企业在发展过程中为获得银行贷款而实施的一种两个或两个以上企业间相互担保的行为,形式上互保可以分为广义的互保和狭义的互保两种类型,广义的企业互保从维护交易安全、商业自由和商人自治角度出发,原则上应为有效,法律不应做过多限制;狭义的互保从保证合同角度出发,既不为有效也不为无效,为了平衡各方利益,兼顾金融风险控制、债权人利益的保护和债务人的商行为自由,将其认定为债务的合并应是较优的选择。
Mutual insurance is an act of mutual guarantee between two or more enterprises in order to obtain bank loans in the process of development. In the form of mutual insurance, there are two types of mutual insurance, which are general mutual insurance and narrow mutual insurance. In the broad sense, the mutual insurance of enterprises should proceed from the point of view of maintaining trade security, commercial freedom and business autonomy. In principle, it should be effective and the law should not impose too many restrictions. The narrow mutual insurance is neither valid nor ineffective from the perspective of guarantee contract , In order to balance the interests of all parties, taking into account the control of financial risks, the protection of the interests of creditors and the freedom of debtors’ businesses, it should be regarded as a better choice to recognize them as debt consolidation.