高利率民間借貸的法律問題研究
發(fā)布時間：2019-02-15 05:30
【摘要】：民間借貸在我國擁有悠久的歷史,在漫長的發(fā)展厲程中,民間借貸的規(guī)模不斷擴大,其借貸款體系也不斷完善。在改革開放以后,由于經(jīng)濟的發(fā)展,中小企業(yè)在金融雙軌制的體系之下,出現(xiàn)融資難的問題,中小企業(yè)出現(xiàn)較大的資金缺口,嚴重阻礙了這些企業(yè)的進一步擴張和發(fā)展。近年來,隨著民間借貸的蓬勃發(fā)展,在很大層面上彌補了正規(guī)融資渠道的缺陷,因而,以中小企業(yè)為主體的民營經(jīng)濟單位融資難問題一定程度上得以緩解。但是,伴隨著民間借貸等民間金融市場的蓬勃發(fā)展,我國在民間借貸的運行與監(jiān)督方面的法律法規(guī)存在缺失,導致司法實踐中出現(xiàn)諸多難題,許多負面的影響逐漸凸顯。而且當前我國現(xiàn)有的法律,對于民間借貸的界定與態(tài)度不明確,導致民間借貸活動游走在合法與非法之間的灰色地帶,承擔了巨大的經(jīng)營風險,也片而地推高了民間借貸的利息率。在此語境之下,如何對民間借貸進行一個界定?如何理性確立民間借貸的法律地位?如何解決高利率民間借貸在司法實踐中的適用法律沖突?這些已經(jīng)成為民間借貸市場以及我國中小企業(yè)進一步發(fā)展所亟需解決的問題。因而,本文首先對有關高利率民間借貸的文獻進行綜述,并從相關的研究以及背景中闡述本文研究的現(xiàn)狀和意義。在此基礎上,試圖以司法實踐中的具體案例為切入點,挖掘和找尋高利率民間借貸的成因以及目前所存在的問題,最后提出對高利率民間借貸問題的一個解決方案。本文主要分為五個部分進行論述。第一章導論是對現(xiàn)有研究的一個綜述。主要是從民間借貸的現(xiàn)狀、民間借貸的利率、等方面對文獻進行梳理。首先,從民間借貸的現(xiàn)狀看,無論是在國內抑或是在國外,以民間借貸為代表的非正式金融機構所占據(jù)的資本總量都是較為可觀的(從30%到70%)。其次,從民間借貸的利率觀之,民間借貸較多是為有償借貸,普遍的規(guī)律是其利率較銀行借貸為高,而且呈現(xiàn)不斷回落的勢頭。再次,對國內外關于民間借貸利率普遍偏高的原因進行總結歸納。在文獻綜述的基礎上提出本文的研究思路和研究方法。第二章以吳英案引發(fā)的思索為切入點,對高利率民間借貸的概念、表現(xiàn)形式與法律性質以及高利率民間借貸的法律風險進行研究。本文試圖通過實證法上的探究,發(fā)現(xiàn)在我國具體法律語境下民間借貸的語義,同時結合相關的民商法理論,總結高利率民間借貸在法律概念上的完整涵義。接著,對高利率的表現(xiàn)形式和法律性質予以探析,并在此基礎上,對容易與民間借貸混淆的法律概念——非法集資進行辨析。最后,對從事高利率民間借貸的法律風險進行提示。第三章對高利率民間借貸的形成原因進行剖析。首先,從民間借貸的產生與發(fā)展進行觀察。以民間借貸的歷史維度為方向進行一個梳理。其次,探析高利率民間借貸存在的合理性。從市場、信貸和經(jīng)濟利益三個層面對高利率民間借貸存在的合理性進行剖析。并在此基礎上探究民間借貸利率高的原因。最后,綜合前述觀點,從高利率民間借貸的影響與發(fā)展方面予以總結分析。第四章著力于找尋當前高利率民間借貸存在的法律問題。從立法和司法兩個層面找尋我國高利率民間借貸法律框架內的不足之處。首先,從立法層而上觀察,立法的缺失與粗糙造成高利率民間借貸的相關規(guī)定并不明晰,影響司法中的具體適用。其次,從司法層面言,在司法中由于相關的規(guī)范性文件規(guī)定的不一致以及程序設計的不合理使得在高利率民間借貸的司法過程中也出現(xiàn)了認定和處理上的問題。第五章主要是對前述的問題提出相應的解決設計。分別從立法、司法和配套措施三方面進行具體的設計。從立法層面上出發(fā),應該構建一個統(tǒng)一的處理原則,在此基礎上方才可以明晰高利率民間借貸的地位,消除立法中的沖突問題,使得法律適用更為統(tǒng)一,更具權威。以司法觀之,法官應該積極行使法律賦予的權利,通過利息保護范圍的困境破除和加強證據(jù)審查及積極行使法官權力方面破解目前司法適用上的困境。最后還應當完善相關的配套措施,排除訴訟外干擾因素的影響和深化利率市場化改革。
[Abstract]:Folk lending has a long history in China. In the long-term development, the scale of folk lending is expanding, and the loan system has been continuously improved. After the reform and opening-up, because of the development of the economy, the small and medium-sized enterprises, under the system of the financial double-track system, have the difficulty of financing, and the small and medium-sized enterprises have large capital gaps, which seriously hinder the further expansion and development of these enterprises. In recent years, with the vigorous development of the folk loan, the defect of the formal financing channel has been made up at a great level, so the financing difficulty of the private economic unit with the small and medium-sized enterprises as the main body can be relieved to some extent. However, with the vigorous development of the folk financial market, such as the folk lending, the lack of laws and regulations on the operation and supervision of the private loan in our country has resulted in many problems in the judicial practice, and many negative effects are becoming more and more prominent. Moreover, the existing law in our country is not clear to the definition and attitude of the folk lending, which leads to the movement of the folk loan in the grey area between the legal and the illegal, and has taken the huge operational risk, and the interest rate of the private loan is also pushed. In this context, how to define private lending? How to rationally establish the legal status of folk lending? How to solve the conflict of the applicable law of the high interest rate folk loan in the judicial practice? These have become the problems that need to be solved by the private lending market and the further development of small and medium-sized enterprises in our country. Therefore, this paper first reviews the literature of high interest rate folk loan, and expounds the present situation and significance of this paper from the relevant research and the background. On the basis of this, the author tries to find out the origin of the high interest rate folk loan and the existing problems in the case of the specific case in the judicial practice, and finally put forward a solution to the problem of high interest rate folk lending. This paper is mainly divided into five parts. The first chapter is an overview of the existing research. It is mainly from the current situation of the folk loan, the interest rate of the folk loan, and so on. First, the total amount of capital occupied by the informal financial institutions represented by private lending, whether in the country or abroad, is considerable (from 30 to 70%), from the current situation of private borrowing. Second, from the view of the interest rate of the folk loan, the more the folk loan is the paid loan, the general rule is that the interest rate is higher than that of the bank, and the trend of falling back. Thirdly, this paper sums up the reasons for the high prevalence of the interest rate of the private lending at home and abroad. Based on the literature review, this paper puts forward the research ideas and methods of this paper. The second chapter studies the concept, the expression and the legal nature of the high interest rate folk loan and the legal risk of the high interest rate folk loan, taking the thought of Wu Ying's case as the starting point. In this paper, we try to find out the meaning of the folk loan in the context of the specific legal context in our country by means of the inquiry of the positivism, and at the same time, combine the relevant theories of the civil and commercial law, and sum up the full meaning of the high interest rate folk loan in the legal concept. Then, the expression of high interest rate and the legal nature of the high interest rate are analyzed, and on this basis, the legal concept, which is easy to be confused with the folk loan, is analyzed. Finally, the legal risk of high interest rate folk lending is prompted. The third chapter analyzes the reason of the formation of high interest rate folk loan. First, it is observed from the production and development of the folk loan. In the historical dimension of the folk loan, a comb is made. Secondly, the rationality of the existence of high interest rate folk loan is analyzed. The rationality of the high interest rate private borrowing is analyzed from the three aspects of market, credit and economic benefit. On the basis of this, the reason of the high interest rate of the folk loan is explored. Finally, the author makes a summary and analysis of the influence and development of the high interest rate folk loan. The fourth chapter focuses on the legal problems of the current high interest rate private borrowing. To find out the deficiency in the legal framework of the high interest rate of China's high interest rate from both the legislative and the judicial aspects. First, it is observed from the legislative layer that the lack of legislation and the relative provisions of the high interest rate private borrowing are not clear and affect the specific application in the administration of justice. Secondly, from the level of the judicial level, in the judicial process, due to the inconformity of the relevant normative documents and the unreasonable design of the program, the problem of the identification and the treatment in the judicial process of the high-interest rate folk loan also appears. The fifth chapter is to put forward the corresponding solution to the above-mentioned problems. The specific design is made from the three aspects of legislation, judicial and supporting measures, respectively. On the basis of the legislative level, it is necessary to construct a unified treatment principle, on which the status of high interest rate folk loan can be clearly defined, the conflict in legislation is eliminated, and the law is more uniform and more authoritative. In view of the judicial view, the judge should actively exercise the rights conferred by the law, break up and strengthen the evidence examination through the plight of the interest protection scope, and actively exercise the power of the judge to solve the difficulties in the current judicial application. Finally, the relevant supporting measures should be improved, the influence of the external interference factors and the reform of the market-oriented interest rate should be deepened.
【學位授予單位】：甘肅政法學院
【學位級別】：碩士
【學位授予年份】：2013
【分類號】：D922.28
[Abstract]:Folk lending has a long history in China. In the long-term development, the scale of folk lending is expanding, and the loan system has been continuously improved. After the reform and opening-up, because of the development of the economy, the small and medium-sized enterprises, under the system of the financial double-track system, have the difficulty of financing, and the small and medium-sized enterprises have large capital gaps, which seriously hinder the further expansion and development of these enterprises. In recent years, with the vigorous development of the folk loan, the defect of the formal financing channel has been made up at a great level, so the financing difficulty of the private economic unit with the small and medium-sized enterprises as the main body can be relieved to some extent. However, with the vigorous development of the folk financial market, such as the folk lending, the lack of laws and regulations on the operation and supervision of the private loan in our country has resulted in many problems in the judicial practice, and many negative effects are becoming more and more prominent. Moreover, the existing law in our country is not clear to the definition and attitude of the folk lending, which leads to the movement of the folk loan in the grey area between the legal and the illegal, and has taken the huge operational risk, and the interest rate of the private loan is also pushed. In this context, how to define private lending? How to rationally establish the legal status of folk lending? How to solve the conflict of the applicable law of the high interest rate folk loan in the judicial practice? These have become the problems that need to be solved by the private lending market and the further development of small and medium-sized enterprises in our country. Therefore, this paper first reviews the literature of high interest rate folk loan, and expounds the present situation and significance of this paper from the relevant research and the background. On the basis of this, the author tries to find out the origin of the high interest rate folk loan and the existing problems in the case of the specific case in the judicial practice, and finally put forward a solution to the problem of high interest rate folk lending. This paper is mainly divided into five parts. The first chapter is an overview of the existing research. It is mainly from the current situation of the folk loan, the interest rate of the folk loan, and so on. First, the total amount of capital occupied by the informal financial institutions represented by private lending, whether in the country or abroad, is considerable (from 30 to 70%), from the current situation of private borrowing. Second, from the view of the interest rate of the folk loan, the more the folk loan is the paid loan, the general rule is that the interest rate is higher than that of the bank, and the trend of falling back. Thirdly, this paper sums up the reasons for the high prevalence of the interest rate of the private lending at home and abroad. Based on the literature review, this paper puts forward the research ideas and methods of this paper. The second chapter studies the concept, the expression and the legal nature of the high interest rate folk loan and the legal risk of the high interest rate folk loan, taking the thought of Wu Ying's case as the starting point. In this paper, we try to find out the meaning of the folk loan in the context of the specific legal context in our country by means of the inquiry of the positivism, and at the same time, combine the relevant theories of the civil and commercial law, and sum up the full meaning of the high interest rate folk loan in the legal concept. Then, the expression of high interest rate and the legal nature of the high interest rate are analyzed, and on this basis, the legal concept, which is easy to be confused with the folk loan, is analyzed. Finally, the legal risk of high interest rate folk lending is prompted. The third chapter analyzes the reason of the formation of high interest rate folk loan. First, it is observed from the production and development of the folk loan. In the historical dimension of the folk loan, a comb is made. Secondly, the rationality of the existence of high interest rate folk loan is analyzed. The rationality of the high interest rate private borrowing is analyzed from the three aspects of market, credit and economic benefit. On the basis of this, the reason of the high interest rate of the folk loan is explored. Finally, the author makes a summary and analysis of the influence and development of the high interest rate folk loan. The fourth chapter focuses on the legal problems of the current high interest rate private borrowing. To find out the deficiency in the legal framework of the high interest rate of China's high interest rate from both the legislative and the judicial aspects. First, it is observed from the legislative layer that the lack of legislation and the relative provisions of the high interest rate private borrowing are not clear and affect the specific application in the administration of justice. Secondly, from the level of the judicial level, in the judicial process, due to the inconformity of the relevant normative documents and the unreasonable design of the program, the problem of the identification and the treatment in the judicial process of the high-interest rate folk loan also appears. The fifth chapter is to put forward the corresponding solution to the above-mentioned problems. The specific design is made from the three aspects of legislation, judicial and supporting measures, respectively. On the basis of the legislative level, it is necessary to construct a unified treatment principle, on which the status of high interest rate folk loan can be clearly defined, the conflict in legislation is eliminated, and the law is more uniform and more authoritative. In view of the judicial view, the judge should actively exercise the rights conferred by the law, break up and strengthen the evidence examination through the plight of the interest protection scope, and actively exercise the power of the judge to solve the difficulties in the current judicial application. Finally, the relevant supporting measures should be improved, the influence of the external interference factors and the reform of the market-oriented interest rate should be deepened.
【學位授予單位】：甘肅政法學院
【學位級別】：碩士
【學位授予年份】：2013
【分類號】：D922.28
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