The legal problems of small loan companies mainly exist in three aspects, namely, the handling of mortgage procedures, the integration of capital interest rates and the docking with the credit information system.
At present, China has not formulated feasible countermeasures for these problems, and scholars need to conduct more in-depth discussions in theory and finally determine feasible solutions. I. Difficulties in Handling Mortgage Procedures According to China's Property Law, if real estate is mortgaged, mortgage registration shall be handled, and the mortgage right shall be established at the time of registration.
If the property is mortgaged without registration, no mortgage right may be established. Accordingly, if a borrower applies for a loan from a small loan company with real estate as collateral, both parties must sign a mortgage contract and go through the formalities of real estate mortgage registration.
However, in the practice of Shanghai small loan companies, the real estate trading center, as the mortgage registration authority, does not accept the mortgage registration application of small loan companies. This problem is caused by various reasons.
China's "General Principles of Loans" and other relevant laws and regulations stipulate that lenders who can provide loans are financial institutions established in China to operate loan business according to law. Such institutions must be approved by the China Banking Regulatory Commission to engage in loan business, hold the Legal Person License for Financial Institutions or the Business License for Financial Institutions issued by the People's Bank of China, and be approved and registered by the administrative department for industry and commerce.
According to the existing laws, financial institutions include banking financial institutions and non-banking financial institutions. Non-bank financial institutions refer to other financial institutions except commercial banks and professional banks, mainly including trust, securities, insurance, financial leasing and other institutions, rural credit cooperatives and finance companies.
In the Interim Provisions on the Administration of Loan Companies (Yin Jian Fa [2007] No.6), the CBRC defines loan companies as "non-bank financial institutions" established by domestic commercial banks or rural cooperative banks in rural areas in accordance with relevant laws and regulations and approved by the CBRC to provide loan services to farmers, agriculture and rural economic development in the county. But obviously, microfinance companies are not "loan companies".
The reason is that, according to the Guiding Opinions, microfinance companies are enterprise legal persons approved by local authorities, invested and established by natural persons, enterprise legal persons and other social organizations, and registered in the administrative department for industry and commerce. Moreover, microfinance companies have neither obtained the financial institution license issued by the CBRC nor been supervised by the CBRC.
Therefore, microfinance companies are neither banking financial institutions nor non-banking financial institutions, but only non-financial enterprises with special financial business (loan business). This ambiguity in identity directly leads to the dilemma of loan and mortgage management of microfinance companies.
All along, commercial banks are the main financial institutions that meet the requirements of China's "General Rules for Loans" and provide loans to the public. The "General Rules for Loans" clearly stipulates that enterprises shall not handle lending or disguised lending financing business in violation of state regulations.
The Supreme People's Court's "Reply on how to deal with overdue loans of corporate loan contract borrowers" stipulates that "corporate loan contracts that violate relevant financial laws and regulations are invalid contracts". At the same time, it also stipulates that "if an enterprise issues loans to the public in the name of lending, it shall be deemed invalid".
It can be seen that enterprises are generally not allowed to issue loans to other enterprises and natural persons. Because microfinance companies are not financial institutions, but non-financial enterprises, the state has not issued special supporting regulations for granting loans and handling mortgage registration for such special enterprises as microfinance companies. Therefore, in order to avoid violating the regulations that enterprises are not allowed to borrow or borrow in disguised form, the mortgage registration authority adopts conservatism in mortgage registration for non-financial enterprises (including small loan companies), that is, it does not accept the mortgage registration application put forward by the company.
This problem is not only reflected in the real estate trading center, but also in the case that small loan companies refuse to register mortgaged property such as vehicles or machinery and equipment. Two. Interest rate of capital integration According to the Guiding Opinions, microfinance companies can raise funds from two or less banking financial institutions. The interest rate and term of capital integration shall be determined by the microfinance company and the corresponding banking financial institutions through independent consultation, and the interest rate shall be determined with reference to the "Shanghai Interbank Offered Rate" in the same period.
However, judging from the feedback from the established microfinance companies in Shanghai, most commercial banks in Shanghai now define this financing of microfinance companies as "credit" business, rather than lending business between financial institutions. That is to say, in practice, when a microfinance company raises money from a commercial bank, it should calculate the interest according to the loan interest rate of ordinary enterprises.
This has caused the capital cost of microfinance companies to be much higher than expected. It is necessary to further clarify whether the financing of microfinance companies is credit business, lending business or other types of business.
But no matter what the nature of this financing is, the core problem lies in how to calculate the interest rate of microfinance companies' funds and how to link this interest rate with the current practice of commercial banks. Due to the special restriction of "only lending but not saving" of microfinance companies, the liquidity pressure of the company is great.
Whether low-cost capital can be injected into microfinance companies is related to their independent and sustainable development. Third, the docking of the credit information system. Commercial banks can use the credit information system of the People's Bank of China to know the details of borrowers, so as to accurately judge the loan risk.
According to the provisions of the Notice of the People's Bank of China and the China Banking Regulatory Commission on Relevant Policies of Village Banks, Loan Companies, Rural Credit Cooperatives and Small Loan Companies, eligible small loan companies can apply to join the basic database of enterprise and individual credit information according to regulations. According to the principle of "establishing the system first, submitting the data first, and then querying the users", the microfinance company accessing the basic database of enterprise and personal credit information should formulate corresponding management systems and operating procedures in accordance with the relevant provisions of the People's Bank of China, submit relevant data regularly, query and use the query results in compliance, and accept the supervision and management of the People's Bank of China.
At the same time, the Guiding Opinions stipulates that the People's Bank of China shall track and monitor the interest rate and capital flow of microfinance companies, and will.
2. Knowledge of loan law
1. General loan refers to a commercial activity in which the lender provides monetary funds to the borrower and the borrower repays the principal and interest at the agreed interest rate and time limit.
In the legal relationship of loan contract, the borrower is the borrower and the lender is the lender. Lawyers' business in bank loans mainly includes: examining borrowers and their legal qualifications; Participate in the drafting, negotiation or review of loan agreements; Providing legal advice and services to both borrowers and borrowers during the performance of the loan contract; Solve disputes in the performance of loan contracts.
By participating in bank loan activities, lawyers help borrowers and borrowers to sign and perform loan contracts according to law, which can help the parties achieve their respective business objectives, prevent and resolve various legal risks in loan business, and promote the smooth development of loan business. These Operating Guidelines are formulated in accordance with the General Principles of the Civil Law, the Contract Law, the General Principles of Loans, the Law on Commercial Banks, the relevant provisions and judicial interpretations of the banking regulatory agencies in China (in this paper, the People's Bank of China or the China Banking Regulatory Commission) and the Supreme People's Court, and are mainly applicable to the loan business in which domestic commercial banks provide RMB funds to domestic enterprises, and provide general guidance for lawyers to handle such loan business.
These operating guidelines are not applicable to financing activities with special arrangements such as syndicated loans, project financing and secured loans. Two. When undertaking the legal business of corporate loan, the relevant qualification examination lawyers of the parties should first conduct legal examination on the subject qualifications of the parties to the loan contract to ensure the legality and effectiveness of the loan contract.
(1) Qualification requirements of the borrower As a lawyer of the borrower, he should review all aspects of the borrower's conditions according to relevant laws and provide relevant legal opinions to help the borrower meet the statutory qualification requirements for borrowing; As a lawyer of a bank, he should help the bank to examine the qualifications of borrowers and ensure that the borrowers who lend by the bank meet the statutory loan qualification requirements. According to the relevant provisions of the General Principles of Loans, an enterprise as a borrower should be an enterprise (enterprise legal person) or other economic organization approved and registered by the administrative department for industry and commerce (or competent authority).
Lawyers should review the legal establishment and existence of borrowers: 1. For limited liability companies and joint stock limited companies, their corporate business licenses should be reviewed; 2. For foreign-invested enterprises, in addition to the business license of the enterprise as a legal person, the approval certificate of the foreign-invested enterprise shall also be examined; 3. For the branch of an enterprise as a legal person, it is necessary to review the business license of the branch; 4. All kinds of enterprises shall pass the annual inspection of the administrative department for industry and commerce, except natural persons and some enterprise legal persons who do not need the approval and registration of the industrial and commercial department; (II) Borrower's qualification certificate: Loan certificate In order to effectively reflect the loan repayment status of enterprises, reduce the loan risk of financial institutions, and establish a self-restraint mechanism for credit management, the People's Bank of China has formulated the Measures for the Administration of Loan Certificate, which clarifies that enterprises can only go through the loan repayment procedures after receiving the loan certificate. The so-called loan certificate is the qualification certificate issued by the China Banking Regulatory Authority to registered legal person enterprises to apply for loans from domestic financial institutions.
A city legal person enterprise that implements the loan certificate management system must apply for a loan certificate if it intends to apply for a loan or has a loan repayment relationship with a financial institution. An enterprise as a legal person can only apply for a loan certificate from the issuing authority at the place of registration.
A corporate enterprise can only apply for one loan certificate. Loan certificates can be used in cities that implement the loan certificate management system.
(III) Qualification Requirements of Lenders According to the relevant provisions of the Law on Commercial Banks and the General Rules on Loans, lenders must obtain the approval of the banking regulatory agency in China, hold the Legal Person License for Financial Institutions or the Business License for Financial Institutions issued by the banking regulatory agency in China, and be approved and registered by the administrative department for industry and commerce. As a lawyer of the lender, he should reasonably remind the lender that he must abide by the Law on Commercial Banks and the monitoring indicators of China's banking regulatory authorities on the ratio of assets to liabilities of commercial banks.
Three. Procedures for concluding a loan contract (I) Loan application When a borrower applies for a loan from an agency of a commercial bank, the lawyer shall provide the borrower with the following assistance: (1) Legal review of the loan application; (2) Assist the borrower to fulfill the company authorization procedures required for loan application; (3) Assist the borrower to conduct legal review on the basic situation of the project. (2) After accepting the borrower's application for loan investigation and approval, the lender's lawyer shall cooperate with the bank to investigate the legality, safety and profitability of the borrower's loan, verify the collateral, pledge and guarantor, and determine the loan risk.
This is an important link in the loan business and an important guarantee for the safety of bank credit funds. The borrower's lawyer may prompt the borrower to cooperate with the bank's investigation and evaluation to realize the loan.
In order to ensure the safety of bank loans, lawyers should also assist banks to conduct legal review on customers who apply for loans, including whether the purpose and purpose of loans are in line with national laws and regulations, industrial policies and credit policies, whether the loan application documents are in line with legal requirements, whether the borrower is legally established and effectively exists, whether the borrower has legal loan qualifications, whether the borrower has obtained all necessary approvals, and whether the borrower's company authorization is sufficient. In addition, lawyers should remind lenders not to issue credit loans to related parties.
At the same time, the conditions for granting secured loans to related parties shall not be superior to those for similar loans of other borrowers. Among them, related party refers to: 1. Directors, supervisors, managers, credit business personnel and their close relatives of commercial banks; 2. Companies, enterprises and other economic organizations in which the personnel listed in the preceding paragraph invest or hold senior management positions.
(III) Drafting and signing of loan contracts Article 37 of the Commercial Bank Law and Article 29 of the General Rules for Loans stipulate that all loans shall be signed by both borrowers and borrowers. Loan contracts are usually drafted by lawyers. The loan contract shall stipulate the type, purpose, amount, interest rate, term, repayment method, rights and obligations of both borrowers and borrowers, liabilities for breach of contract and other matters that both parties think need to be agreed.
Four. Main contents of loan contract (1) A loan contract generally has the following important clauses: 1. The purpose of the loan refers to the scope of use of the loan. Borrow.
3. Are there any laws and regulations on personal microfinance in China?
Private microfinance belongs to private lending, and its product design often deliberately circumvents the provisions of the law, resulting in opaque fees such as service fees to avoid the restrictive provisions of the law on interest. China allows and protects private lending, but there are restrictions on interest, that is, the annual interest rate is less than 2 cents, which is completely legal; If the profit exceeds 2 points but not more than 3 points, it is not prohibited by law if it has been paid, and it is not supported by law if it has not been paid; It is illegal to earn more than 3 points.
Link to the article: "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases"
1. Article 26 If the interest rate agreed between the borrower and the borrower does not exceed the annual interest rate of 24%, and the lender requests the borrower to pay interest at the agreed interest rate, the people's court shall support it.
The interest rate agreed between the borrower and the borrower exceeds the annual interest rate of 36%, and the interest agreement in excess is invalid. The people's court shall support the borrower's request to the lender to return the part of the interest paid that exceeds 36% per annum.
2. Article 27 The loan amount recorded in debt certificates such as IOUs, receipts and IOUs is generally recognized as the principal. If interest is deducted from the principal in advance, the people's court shall confirm the actual amount lent as the principal.
3. Article 28 After the borrower and the borrower settle the principal and interest of the previous loan, they will include the interest in the principal of the latter loan, and issue the creditor's rights certificate again. If the previous interest rate does not exceed the annual interest rate of 24%, the amount specified in the reissued creditor's rights certificate can be confirmed as the later loan principal; Excess interest cannot be included in the future loan principal. If the agreed interest rate exceeds the annual interest rate of 24%, and the parties claim that the excess interest cannot be included in the later loan principal, the people's court shall support it.
According to the calculation in the preceding paragraph, the sum of the principal and interest payable by the borrower after the expiration of the loan term cannot exceed the sum of the initial loan principal and the interest of the whole loan term calculated at the annual interest rate of 24% based on the initial loan principal. If the lender requests the borrower to pay the excess, the people's court will not support it.
Article 29 If the borrower and the lender have an agreement on overdue interest rate, such agreement shall prevail, but the annual interest rate shall not exceed 24%.
If the overdue interest rate is not agreed or clearly agreed, the people's court may handle it according to different circumstances:
(1) The lender claims that the borrower should pay the interest during the period of capital occupation at the annual interest rate of 6% from the date of overdue repayment, and the people's court should support it because the interest rate during the loan period has not been agreed;
(2) If the interest rate during the loan period is agreed, but the overdue interest rate is not agreed, the people's court shall support the lender to claim that the borrower shall pay the interest during the capital occupation period according to the interest rate during the loan period from the date of overdue repayment.
Article 30 The lender and the borrower have agreed on overdue interest rate, liquidated damages or other expenses. The lender may choose to claim overdue interest, liquidated damages or other expenses, or both, but the people's court will not support the part that exceeds 24% of the annual interest rate.
6. Article 31 If the borrower voluntarily pays interest, or voluntarily pays interest exceeding the agreed interest rate or liquidated damages, and the interests of the state, the collective and the third party are not harmed, the people's court will not support it if the borrower requests the lender to return the interest on the grounds of unjust enrichment, except that the borrower requests to return the interest exceeding the annual interest rate of 36%.