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【裁判要旨】部分担保公司为规避代偿风险,以委托商业银行向债务人发放贷款的方式代替履行担保责任,由此引发追偿权纠纷。该类案件担保人在担保业务过程中,并未按照有关法律规定办理正常的代偿手续,其委托银行向债务人发放贷款的行为,并不属于法律意义上的担保代偿行为,应视为其与债务人之间发生新的借贷关系。因此,担保人以委托贷款方式掩盖代偿风险的行为,并不当然享有担保追偿权。
[Referee motivation] Part of the guarantee company to avoid the risk of compensation, to entrust commercial banks to issue loans to the debtor instead of performing security obligations, which led to the dispute over the right to compensation. In the process of guaranteeing business, the guarantor in such cases did not go through the normal procedures for compensations in accordance with the relevant laws and regulations. The entrustment of the bank to issue loans to the debtor does not belong to the legal guarantee of compensatory acts and should be regarded as A new lending relationship with the debtor occurs. Therefore, the guarantor to cover the risk of compensation by way of entrusted loans, and does not of course have the right to recover the guarantee.