我国民间讨债的法律分析与思考
发布时间：2018-07-23 08:12
【摘要】：本文采用由现象到本质、以小见大、从微观看法到宏观视野的逻辑理念,按照四部分的结构体系对我国民间讨债进行了客观、全面的分析。文章涉及我国信用体系的缺失、司法制度的弊端、传统文化的影响以及私力救济的特点、发展趋势和多元化纠纷解决机制的优势互补。既有对社会现象的总结也有法学理论的分析；既有宏观的展望亦有细微的论证；既有法学前沿的介绍,自20世纪70年代起源于美国的ADR即替代性纠纷解决机制发展状况,也有中国特色民间性社会型救济的分析；既有对研究领域学者理论观点的借鉴,亦有笔者对问题独特见解。 文章介绍了我国民间讨债的研究现状,包括债权的实现方式、民间讨债的含义、类型以及存在的争议,重点讨论了当下热议的职业讨债人以及讨债公司的发展状况。以国家对民间讨债的态度为基点,分析讨论其受到质疑或禁止的原因,从多角度认识民间讨债,不可一概将其纳入违法之列。并从社会需求、社会分工以及社会供给等方面,分析讨债公司屡禁不止的原因即存在的客观必然性。 本文从稍深层次上探究民间讨债受到众多债权人青睐的原因,实质是对其价值的解析。论文分别从我国传统文化、经济效益、法律制度的局限和不足论述了民间讨债的文化价值：自治意识、正义感、和谐相处之道；经济价值：高效、低廉；法律价值：司法改革的助推器。运用理论和实践结合论证方法,理论铺垫和案例分析相结合。 论文分析了民间讨债的性质归属,探讨民间讨债的法律规制。对私力救济的含义理解与民间讨债的诠释紧密结合,运用马克思主义关于社会发展的一般规律,分析私力救济以及民间讨债的发展趋势。以私力救济及纠纷解决机制的法学理论为基点,从合法性审查、自助行为法律化以及构建多元化纠纷解决机制方面探讨民间讨债的法律规制。该文始终坚持促进债权的实现应该是在维护法律和司法的权威,循序渐进地建立现代司法制度的基础上,发展并完善社会型救济,认可私力救济的适当性,并发挥国家的引导性作用,尽力控制由于私力救济权利滥用导致的侵害他人合法权益、破坏社会秩序等情形。
[Abstract]:This paper adopts the logic idea from phenomenon to essence, through a small part to see the whole, from the microscopic view to the macroscopic view, according to the four-part structure system, carries on the objective, comprehensive analysis to our country folk debt collection. This article deals with the lack of credit system, the malpractice of judicial system, the influence of traditional culture, the characteristics of private relief, the development trend and the complementary advantages of diversified dispute resolution mechanism. There are both the summary of social phenomena and the analysis of legal theory; the macroscopic outlook and subtle argumentation; the introduction of the frontier of law; the development of ADR, the alternative dispute resolution mechanism, which originated in the United States in the 1970s. There is also an analysis of folk social relief with Chinese characteristics, which not only draws lessons from the theoretical viewpoints of scholars in the field of research, but also has the author's unique views on the problems. This paper introduces the current research situation of the folk debt collection in China, including the way to realize the creditor's rights, the meaning, the types and the existing disputes of the folk debt collection, and mainly discusses the development of the professional debt collectors and debt collection companies. Based on the attitude of the state to the folk debt collection, this paper analyzes and discusses the reasons why it is questioned or prohibited, and understands the folk debt collection from various angles, and cannot bring it into the category of illegal. From the aspects of social demand, social division of labor and social supply, this paper analyzes the objective inevitability of the repeated prohibition of debt collection companies. This paper probes into the reason why folk debt collection is favored by many creditors from a deeper level, and the essence is the analysis of its value. The paper discusses the cultural value of folk debt collection from the limitation and deficiency of traditional culture, economic benefit and legal system: the sense of autonomy, the sense of justice, the way to get along harmoniously, the economic value: high efficiency and low cost; Legal value: the booster of judicial reform. Theory and practice combined with the demonstration method, theoretical paving and case analysis combined. This paper analyzes the nature of folk debt collection, discusses the legal regulation of folk debt collection. The understanding of the meaning of private relief is closely combined with the interpretation of folk debt collection, and the general law of social development of Marxism is used to analyze the development trend of private relief and folk debt collection. Based on the legal theory of private relief and dispute resolution mechanism, this paper probes into the legal regulation of folk debt collection from the aspects of legality examination, legalization of self-help behavior and construction of diversified dispute resolution mechanism. This paper insists that the realization of creditor's rights should be based on the maintenance of the authority of law and justice, the gradual establishment of modern judicial system, the development and perfection of social relief, and the recognition of the appropriateness of private relief. And give play to the leading role of the state, try to control the abuse of private relief rights caused by the violation of other people's legitimate rights and interests, damage to social order and so on.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923;D926
本文编号：2138760
[Abstract]:This paper adopts the logic idea from phenomenon to essence, through a small part to see the whole, from the microscopic view to the macroscopic view, according to the four-part structure system, carries on the objective, comprehensive analysis to our country folk debt collection. This article deals with the lack of credit system, the malpractice of judicial system, the influence of traditional culture, the characteristics of private relief, the development trend and the complementary advantages of diversified dispute resolution mechanism. There are both the summary of social phenomena and the analysis of legal theory; the macroscopic outlook and subtle argumentation; the introduction of the frontier of law; the development of ADR, the alternative dispute resolution mechanism, which originated in the United States in the 1970s. There is also an analysis of folk social relief with Chinese characteristics, which not only draws lessons from the theoretical viewpoints of scholars in the field of research, but also has the author's unique views on the problems. This paper introduces the current research situation of the folk debt collection in China, including the way to realize the creditor's rights, the meaning, the types and the existing disputes of the folk debt collection, and mainly discusses the development of the professional debt collectors and debt collection companies. Based on the attitude of the state to the folk debt collection, this paper analyzes and discusses the reasons why it is questioned or prohibited, and understands the folk debt collection from various angles, and cannot bring it into the category of illegal. From the aspects of social demand, social division of labor and social supply, this paper analyzes the objective inevitability of the repeated prohibition of debt collection companies. This paper probes into the reason why folk debt collection is favored by many creditors from a deeper level, and the essence is the analysis of its value. The paper discusses the cultural value of folk debt collection from the limitation and deficiency of traditional culture, economic benefit and legal system: the sense of autonomy, the sense of justice, the way to get along harmoniously, the economic value: high efficiency and low cost; Legal value: the booster of judicial reform. Theory and practice combined with the demonstration method, theoretical paving and case analysis combined. This paper analyzes the nature of folk debt collection, discusses the legal regulation of folk debt collection. The understanding of the meaning of private relief is closely combined with the interpretation of folk debt collection, and the general law of social development of Marxism is used to analyze the development trend of private relief and folk debt collection. Based on the legal theory of private relief and dispute resolution mechanism, this paper probes into the legal regulation of folk debt collection from the aspects of legality examination, legalization of self-help behavior and construction of diversified dispute resolution mechanism. This paper insists that the realization of creditor's rights should be based on the maintenance of the authority of law and justice, the gradual establishment of modern judicial system, the development and perfection of social relief, and the recognition of the appropriateness of private relief. And give play to the leading role of the state, try to control the abuse of private relief rights caused by the violation of other people's legitimate rights and interests, damage to social order and so on.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923;D926
【引证文献】
相关硕士学位论文 前1条
1 田添;群体性纠纷私力救济的法律规制[D];西北大学;2013年
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