民间借贷合同的法律问题研究

发布时间：2018-05-31 02:01

本文选题：民间借贷合同 + 高利贷　；参考：《杭州师范大学》2013年硕士论文

【摘要】：民间借贷自古以来就作为一种重要的融资方式而存在,近年来,随着经济的发展．民众对资金的需求增加．民间借贷发展日趋活跃,民间借贷成为法学界乃至全社会讨论的热门话题。民间借贷对我国社会经济的发展贡献突出．弥补了正规金融的不足,促进了民营经济特别是民营中小企业的发展。但长期以来,我国对民间借贷一直持怀疑和否定的态度,在法律上缺乏专门法律法规对其加以规制,以致民间借贷游离于监管之外．且间借贷币场风险巨大会影响到金融秩序和社会稳定。民间借贷本质即合同行为.我国的合同法只对借款合同进行了简要的规定．民间借贷也主要参照借款合同的相关规定．法律依据的缺乏导致民间借贷合同在实践中纠纷不断．本文以民间借贷合同为视角，，对民间借贷合司的理论和实践阅题进行研究,就完善目前民间借贷的合同制度提出了自己的建议。全文分为以下六个部分：第一章是对民间借贷的界定,从内涵和法律性质上进行界定。由于我国目前对民间借贷尚未形成统一的认识,在理论界存在多种认识．笔者拟住对这些学说进行梳理的基础上,就民间借贷的内涵进行界定，并就民间借贷的法律性质进行分析。第二章是对民间借贷合同的理论分析。笔者通过对国内外借贷合同的立法研究指出我国的民间借贷合同本质上即借款合同。由于民间借贷合同形式的多样性和主体的复杂性.在这部分笔者对民间借贷合同的类型、法律特征及合同的构成进行了细致的分析。第三章是对民间借贷合同的风险分析。民间借贷合同为中小企业和个人解决了融资难题,对中国经济的发展功不可没，这些不需再加详述。但民间借贷合同容易衍生金融、社会风险，通过对风险的分析有利于全面正确的认识民间借贷第四章对我国关于民间借贷合同的立法现状进行梳理。我国目前对民间借贷合同进行规范的主要体现在法律、行政规章和司法解释层面。总体来说,法律规定少且不协调．已经落后于民间借贷的发展现状,相关立法有待于完善．特别是对民间借贷合同主体范围的规定十分狭隘,将企业间的借贷仍排除在合法借贷的范畴之外．已严重不符合现实社会经济的发展。第五章就实务中民间借贷合同存在的法律问题进行分析。近些年,民间借贷合同引起的诉讼纠纷不断,其中暴露的法律问题不容小觑。笔者就民间借贷合同的形式、利息、担保和诉讼时效方面指出其中所存在的问题和争议，如口头合同中面临的举证难、利息中的高利贷、四倍利率、复利计算、利息支付等问题都是民间借贷合同纠纷中的突出问题。第六章就加何完善民间借贷合同的法律制度进行探讨。这部分结合我国民间借贷合同的立法缺陷及实务中存在的法律问题，笔者认为完善民间借贷合同的法律制度首先需要在立法上肯定民间借贷约合法地位、只有将民间借贷纳入合法地位才有利于对民间借贷有效的监管。其次民间借贷还应该放开合法的企业间借贷,扩大民间借货的主体范围，但同时也要完善对放开企业间借贷后的配套监管。再者，民间借贷合同还应在制度上完善对形式、举证问题、高利贷、利率、诉讼时效等问题的规范,完喜的法律制度有利于规范人们的借贷行为,引导民间借贷逐步走向健康发展之路。
[Abstract]:Private lending has been an important way of financing since ancient times. In recent years, with the development of the economy, the demand for funds has increased. The development of private lending has become increasingly active. Private lending has become a hot topic in the discussion of the law and the whole society. The contribution of private lending to the development of our social economy has been made up. The shortage of formal finance has promoted the development of private economy, especially private medium and small enterprises. However, for a long time, our country has been doubtful and negative about private lending, and it has no special laws and regulations to regulate it in law, so that private lending is free from supervision. And the huge risk of borrowing money field will affect the financial rank. Order and social stability. The essence of private lending is contract behavior. The contract law of our country only makes a brief provision on the loan contract. The folk loan is also mainly referred to the relevant provisions of the loan contract. The lack of legal basis leads to the continuous dispute in the practice of the private lending contract. This article takes the private loan contract as the angle of view to the folk loan. In the study of the theory and practice, he put forward his own proposals to improve the current contract system of private lending. The full text is divided into six parts:
The first chapter is the definition of private lending, which is defined in terms of connotation and legal nature. Since our country has not yet formed a unified understanding of private lending at present, there are many kinds of understanding in the theoretical circle. On the basis of the combing of these theories, the author defines the connotation of folk lending and carries out the legal nature of folk lending. Analysis.
The second chapter is the theoretical analysis of the private loan contract. Through the Legislative Study on the domestic and foreign loan contracts, the author points out that the private loan contract in China is essentially a loan contract. The types of the private loan contract and the complexity of the main body are found in this part. A detailed analysis was made.
The third chapter is an analysis of the risk of the private loan contract. The private loan contract has solved the financing problem for the small and medium enterprises and individuals, and the development of China's economy can not be ignored. However, the private lending contract is easy to derive financial and social risks, and it is beneficial to fully and correctly understand the private lending through the analysis of the risk.
In the fourth chapter, the current legislation on the civil loan contract in China is combed. The current regulation of private lending contracts in China is mainly embodied in the law, administrative rules and judicial interpretations. In general, the legal provisions are less and uncoordinated. The relevant legislation has been lagging behind the development of private lending, and the relevant legislation is to be improved. The scope of the main body of the private loan contract is very narrow, and the loan between enterprises is still excluded from the scope of legal lending. It has been seriously inconsistent with the development of the real social economy.
The fifth chapter analyzes the legal problems of the civil loan contract in practice. In recent years, the litigation disputes caused by the private loan contract are constantly being disputed, and the legal problems exposed can not be underestimated. The author points out the problems and disputes in the form of the private loan contract, interest, guarantee and the limitation of action, such as the oral contract. Faced with the difficulty of proof, interest in usury, four times interest rate, compound interest calculation, interest payments and other issues are outstanding issues in private lending contract disputes.
The sixth chapter discusses how to perfect the legal system of the private loan contract. This part combines the legislative defects of the civil loan contract in China and the legal problems in the practice. The author thinks that the legal system of improving the civil loan contract needs to affirm the legal status of private lending in the first place. The legal status is conducive to the effective supervision of private lending. Secondly, private lending should also open legal inter enterprise lending, expand the scope of the main body of the private loan, but also improve the supporting supervision after the release of inter enterprise lending. Furthermore, the civil loan contract should be perfected in the system, the problem of proof, the usury, and the interest rate. The legal system of the limitation of actions and other legal systems will help regulate people's lending behavior, and guide private lending to gradually develop towards a healthy development.
【学位授予单位】：杭州师范大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6

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