高利率民间借贷的法律问题研究

发布时间：2019-02-15 05:30

【摘要】：民间借贷在我国拥有悠久的历史,在漫长的发展厉程中,民间借贷的规模不断扩大,其借贷款体系也不断完善。在改革开放以后,由于经济的发展,中小企业在金融双轨制的体系之下,出现融资难的问题,中小企业出现较大的资金缺口,严重阻碍了这些企业的进一步扩张和发展。近年来,随着民间借贷的蓬勃发展,在很大层面上弥补了正规融资渠道的缺陷,因而,以中小企业为主体的民营经济单位融资难问题一定程度上得以缓解。但是,伴随着民间借贷等民间金融市场的蓬勃发展,我国在民间借贷的运行与监督方面的法律法规存在缺失,导致司法实践中出现诸多难题,许多负面的影响逐渐凸显。而且当前我国现有的法律,对于民间借贷的界定与态度不明确,导致民间借贷活动游走在合法与非法之间的灰色地带,承担了巨大的经营风险,也片而地推高了民间借贷的利息率。在此语境之下,如何对民间借贷进行一个界定?如何理性确立民间借贷的法律地位?如何解决高利率民间借贷在司法实践中的适用法律冲突?这些已经成为民间借贷市场以及我国中小企业进一步发展所亟需解决的问题。因而,本文首先对有关高利率民间借贷的文献进行综述,并从相关的研究以及背景中阐述本文研究的现状和意义。在此基础上,试图以司法实践中的具体案例为切入点,挖掘和找寻高利率民间借贷的成因以及目前所存在的问题,最后提出对高利率民间借贷问题的一个解决方案。本文主要分为五个部分进行论述。第一章导论是对现有研究的一个综述。主要是从民间借贷的现状、民间借贷的利率、等方面对文献进行梳理。首先,从民间借贷的现状看,无论是在国内抑或是在国外,以民间借贷为代表的非正式金融机构所占据的资本总量都是较为可观的(从30%到70%)。其次,从民间借贷的利率观之,民间借贷较多是为有偿借贷,普遍的规律是其利率较银行借贷为高,而且呈现不断回落的势头。再次,对国内外关于民间借贷利率普遍偏高的原因进行总结归纳。在文献综述的基础上提出本文的研究思路和研究方法。第二章以吴英案引发的思索为切入点,对高利率民间借贷的概念、表现形式与法律性质以及高利率民间借贷的法律风险进行研究。本文试图通过实证法上的探究,发现在我国具体法律语境下民间借贷的语义,同时结合相关的民商法理论,总结高利率民间借贷在法律概念上的完整涵义。接着,对高利率的表现形式和法律性质予以探析,并在此基础上,对容易与民间借贷混淆的法律概念——非法集资进行辨析。最后,对从事高利率民间借贷的法律风险进行提示。第三章对高利率民间借贷的形成原因进行剖析。首先,从民间借贷的产生与发展进行观察。以民间借贷的历史维度为方向进行一个梳理。其次,探析高利率民间借贷存在的合理性。从市场、信贷和经济利益三个层面对高利率民间借贷存在的合理性进行剖析。并在此基础上探究民间借贷利率高的原因。最后,综合前述观点,从高利率民间借贷的影响与发展方面予以总结分析。第四章着力于找寻当前高利率民间借贷存在的法律问题。从立法和司法两个层面找寻我国高利率民间借贷法律框架内的不足之处。首先,从立法层而上观察,立法的缺失与粗糙造成高利率民间借贷的相关规定并不明晰,影响司法中的具体适用。其次,从司法层面言,在司法中由于相关的规范性文件规定的不一致以及程序设计的不合理使得在高利率民间借贷的司法过程中也出现了认定和处理上的问题。第五章主要是对前述的问题提出相应的解决设计。分别从立法、司法和配套措施三方面进行具体的设计。从立法层面上出发,应该构建一个统一的处理原则,在此基础上方才可以明晰高利率民间借贷的地位,消除立法中的冲突问题,使得法律适用更为统一,更具权威。以司法观之,法官应该积极行使法律赋予的权利,通过利息保护范围的困境破除和加强证据审查及积极行使法官权力方面破解目前司法适用上的困境。最后还应当完善相关的配套措施,排除诉讼外干扰因素的影响和深化利率市场化改革。
[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.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.28

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