Viewpoint... The legal nature and case analysis of the pledge of highway toll rights.
Published:
2022-09-06
Introduction As a public infrastructure, highways are owned by the state in accordance with the law, and highway toll rights are usually managed by the government as an administrative power. Since the reform and opening up of our country, in order to promote the construction of infrastructure, the construction mode of operating toll roads has gradually developed, that is, the government transfers the franchise rights of toll roads within a certain period of time to non-governmental economic organizations in accordance with the law, and it is responsible for the overall construction, Operation, maintenance and tolls, and then return the management rights after expiration. At present, China is in the development stage of infrastructure construction, all kinds of projects in the construction process, funding is always one of the problems to be solved. In the process of toll road construction, it is a common financing method in practice for toll road project investors to pledge the road toll right to the bank to obtain loan funds. From a legal point of view, what is the legal nature of this right to charge, and what legal risks will exist in practice? The Legal Nature of the Pledge of Highway Toll Right As a kind of right that can bring economic value, highway toll right should belong to the category of right quality right when establishing pledge guarantee. China's laws and regulations identify road toll rights as a type of accounts receivable, and Article 3 of the Uniform Registration of Movable Property and Rights Guarantees provides a general list of various accounts receivable: The accounts receivable referred to in these Measures shall include the following rights: Claims arising from the sale and lease of (I), including the sale of goods, the supply of water, electricity, gas and heating, the licensed use of intellectual property rights, and the lease of movable or immovable property; Creditor's rights arising from the (II)'s provision of services or labor services such as medical treatment, education and tourism; (III) the right to profit from infrastructure and public utility projects such as energy, transportation, water conservancy, environmental protection, and municipal engineering; Claims arising from (IV) provision of loans or other credit activities; (V) other contractual-based claims with monetary payments. It can be seen that the right of highway toll belongs to the content of the third paragraph of the article, in line with the concept of accounts receivable, can be applied to the legal provisions related to accounts receivable, such as the establishment of the right of highway toll pledge needs to be registered. With regard to the realization of the pledge of highway toll rights, the Supreme People's Court on the application of<中华人民共和国民法典>Article 61 of the Interpretation on the Guarantee System also has the following special provisions: The people's court shall support the pledgee's request to give priority to the payment of the funds in the specific account when the parties set up a specific account for the accounts receivable and the legal or agreed reasons for the realization of the pledge occur. The people's court shall support the pledge; the funds in the specific account are not enough to pay off the debts or no specific account has been set up, if the pledgee requests a discount or an auction or sale of the right to the proceeds of the project, etc., and gives priority to the payment of the proceeds, the people's court shall support it in accordance with the law. The right of highway toll is also special compared to the general right of quality. First of all, when the highway toll right is authorized to the highway project investors, the material basis for its existence is that the toll road has not yet been built, and its possible economic value can only be obtained through evaluation and other means, while the actual benefits can only be realized after it is opened to traffic. Secondly, when the highway project investors can start tolling through the highway tolling rights approved by the relevant departments after the completion of the highway, its value is not a one-time realization, but the need to collect tolling fees for passing vehicles within the approved period in order to realize the actual economic value of the highway tolling rights. Therefore, there is a long time difference between the acquisition of highway toll right and the realization of its economic value, which is a kind of expectation right, and there is also the risk that the right of toll can not be obtained or lost in the end. Typical case Treatment of Pledge when Highway Toll Right is Withdrawn [(2020) Chuanminzong No. 1514]] basic case] Linshui Agricultural Bank and Linshui Communications Development Company signed the "Maximum Mortgage Guaranteed Loan Contract", which stipulates that Linshui Communications Development Company needs a long-term loan for the 210 National Highway Project, the loan amount is 30,000,000 yuan, and the 210 line Linshui domestic road toll rights as collateral. In December 2012, the People's Government of Sichuan Province issued the Notice on Canceling the Toll Collection of Secondary Highway for Government Loan Repayment, which included the Dafosi Toll Station of Linshui National Highway 210 in the station publicity list of the notice. In the same month, Linshui Agricultural Bank, Linshui Communications Development Company and Linshui County Finance Bureau signed Linshui County Agreement on Cancellation of Secondary Highway Toll Repayment (Borrowing) of Government Loan Repayment, which specifies that after the Ministry of Finance subsidy funds and provincial assistance funds are transferred to the account of the Finance Bureau, Linshui Communications Development Company shall apply for appropriation, and Linshui County Finance Bureau shall allocate and repay the debts of Linshui Agricultural Bank within three months according to the proportion of the total funds. After the bad claim is transferred to a third party, the third party to the court to claim the right of priority compensation for the road toll. court view] The right to highway toll collection may be pledged in accordance with the law. Linshui Communications Development Company pledged the toll right of National Highway 210 to Linshui Agricultural Bank due to the need of the construction project, and registered the pledge in accordance with the law, the pledge of both parties shall be valid in accordance with the law, and the pledgee shall have the priority right to receive compensation for the pledge. Article 73 of the "the People's Republic of China Guarantee Law" "The right of pledge shall be extinguished due to the loss of the pledge. The compensation for the loss shall be treated as pledged property", in this case, the pledge shall be extinguished due to the loss of the toll collection right due to the cancellation of the government's loan repayment secondary road tolls, but the state shall be treated as pledged property due to the cancellation of the toll collection right by the central and provincial people's governments. comment] When the highway toll right is recovered, the right of quality is eliminated, but its effect can be extended to the subsidy arising from the recovery of the toll right, and its legal principle lies in the property subrogation of the security right. According to article 390 of the Civil Code, during the period of security, if the secured property is damaged, lost or expropriated, the security interest holder may give priority to the insurance, compensation or compensation obtained. Before the highway project was completed and opened to traffic, the highway toll right was recovered by the government before it was obtained. At this time, the toll right as a quality lost the possibility of generating economic value, so the toll right pledge lost its effect when the toll right was recovered. At this time, the built part of the highway does not produce use value, can not be counted as a real thing, but as a part of the highway, its value is only the value of the project that has been built. When the government takes back the highway toll right, it shall compensate the other party for the project funds according to the actual investment of the completed part. For this part of the compensation, it can be considered that in the ordinary movable property pledge, if the pledge has received compensation, insurance or compensation for loss, damage or expropriation, the compensation as a subrogation shall be the effect of the right of quality. </中华人民共和国民法典>
Introduction
As a public infrastructure, highways are owned by the state in accordance with the law, and highway toll rights are usually managed by the government as an administrative power. Since the reform and opening up of our country, in order to promote the construction of infrastructure, the construction mode of operating toll roads has gradually developed, that is, the government transfers the franchise rights of toll roads within a certain period of time to non-governmental economic organizations in accordance with the law, and it is responsible for the overall construction, Operation, maintenance and tolls, and then return the management rights after expiration. At present, China is in the development stage of infrastructure construction, all kinds of projects in the construction process, funding is always one of the problems to be solved. In the process of toll road construction, it is a common financing method in practice for toll road project investors to pledge the road toll right to the bank to obtain loan funds. From a legal point of view, what is the legal nature of this right to charge, and what legal risks will exist in practice?
The Legal Nature of the Pledge of Highway Toll Right
As a kind of right that can bring economic value, highway toll right should belong to the category of right quality right when establishing pledge guarantee. China's laws and regulations identify road toll rights as a type of accounts receivable, and Article 3 of the Uniform Registration of Movable Property and Rights Guarantees provides a general list of various accounts receivable:
The accounts receivable referred to in these Measures shall include the following rights:
Claims arising from the sale and lease of (I), including the sale of goods, the supply of water, electricity, gas and heating, the licensed use of intellectual property rights, and the lease of movable or immovable property;
Creditor's rights arising from the (II)'s provision of services or labor services such as medical treatment, education and tourism;
(III) the right to profit from infrastructure and public utility projects such as energy, transportation, water conservancy, environmental protection, and municipal engineering;
Claims arising from (IV) provision of loans or other credit activities;
(V) other contractual-based claims with monetary payments.
It can be seen that the right of highway toll belongs to the content of the third paragraph of the article, in line with the concept of accounts receivable, can be applied to the legal provisions related to accounts receivable, such as the establishment of the right of highway toll pledge needs to be registered. With regard to the realization of the pledge of highway toll rights, the Supreme People's Court on the application of<中华人民共和国民法典>Article 61 of the Interpretation on the Guarantee System also has the following special provisions:
toIncome rights for infrastructure and utilities projects, the provision of services or services arising from the claims and other accounts receivable, the parties set up a specific account for the accounts receivable, the occurrence of statutory or agreed reasons for the realization of the right, the right holder requests.Money in that particular accountIf priority is given to payment, the people's court shall support it; if the amount in a particular account is insufficient to pay off the debt or if a particular account is not established, the pledgee shall request it.Discount or auction, sale of the project proceeds.The people's court shall support the accounts receivable, such as the accounts receivable, and give priority to the payment of the proceeds.
The right of highway toll is also special compared to the general right of quality. First of all, when the highway toll right is authorized to the highway project investors, the material basis for its existence is that the toll road has not yet been built, and its possible economic value can only be obtained through evaluation and other means, while the actual benefits can only be realized after it is opened to traffic. Secondly, when the highway project investors can start tolling through the highway tolling rights approved by the relevant departments after the completion of the highway, its value is not a one-time realization, but the need to collect tolling fees for passing vehicles within the approved period in order to realize the actual economic value of the highway tolling rights. Therefore, there is a long time difference between the acquisition of highway toll right and the realization of its economic value, which is a kind of expectation right, and there is also the risk that the right of toll can not be obtained or lost in the end.
Typical case
The treatment of the right of quality when the right of highway toll is withdrawn.[(2020) Chuan Min Zhong No. 1514]]
basic case]
Linshui Agricultural Bank and Linshui Communications Development Company signed the "Maximum Mortgage Guaranteed Loan Contract", which stipulates that Linshui Communications Development Company needs a long-term loan for the 210 National Highway Project, the loan amount is 30,000,000 yuan, and the 210 line Linshui domestic road toll rights as collateral. In December 2012, the People's Government of Sichuan Province issued the Notice on Canceling the Toll Collection of Secondary Highway for Government Loan Repayment, which included the Dafosi Toll Station of Linshui National Highway 210 in the station publicity list of the notice. In the same month, Linshui Agricultural Bank, Linshui Communications Development Company and Linshui County Finance Bureau signed Linshui County Agreement on Cancellation of Secondary Highway Toll Repayment (Borrowing) of Government Loan Repayment, which specifies that after the Ministry of Finance subsidy funds and provincial assistance funds are transferred to the account of the Finance Bureau, Linshui Communications Development Company shall apply for appropriation, and Linshui County Finance Bureau shall allocate and repay the debts of Linshui Agricultural Bank within three months according to the proportion of the total funds. After the bad claim is transferred to a third party, the third party to the court to claim the right of priority compensation for the road toll.
court view]
The right to highway toll collection may be pledged in accordance with the law. Linshui Communications Development Company pledged the toll right of National Highway 210 to Linshui Agricultural Bank due to the need of the construction project, and registered the pledge in accordance with the law, the pledge of both parties shall be valid in accordance with the law, and the pledgee shall have the priority right to receive compensation for the pledge. Article 73 of the "the People's Republic of China Guarantee Law" "The right of pledge shall be extinguished due to the loss of the pledge. The compensation for the loss shall be treated as pledged property", in this case, the pledge shall be extinguished due to the loss of the toll collection right due to the cancellation of the government's loan repayment secondary road tolls, but the state shall be treated as pledged property due to the cancellation of the toll collection right by the central and provincial people's governments.
comment]
When the highway toll right is recovered, the right of quality is eliminated, but its effect can be extended to the subsidy arising from the recovery of the toll right, and its legal principle lies in the property subrogation of the security right. According to article 390 of the Civil Code, during the period of security, if the secured property is damaged, lost or expropriated, the security interest holder may give priority to the insurance, compensation or compensation obtained.
Before the highway project was completed and opened to traffic, the highway toll right was recovered by the government before it was obtained. At this time, the toll right as a quality lost the possibility of generating economic value, so the toll right pledge lost its effect when the toll right was recovered. At this time, the built part of the highway does not produce use value, can not be counted as a real thing, but as a part of the highway, its value is only the value of the project that has been built. When the government takes back the highway toll right, it shall compensate the other party for the project funds according to the actual investment of the completed part. For this part of the compensation, it can be considered that in the ordinary movable property pledge, if the pledge has received compensation, insurance or compensation for loss, damage or expropriation, the compensation as a subrogation shall be the effect of the right of quality.
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