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In China's credit market, formal financial institutions have long occupied a dominant position. Due to the complicated procedures, high cost, low income and high risk of granting loans to small and micro enterprises, financial institutions are generally popular.
I am bent on lending to large enterprises. Under the background of the continuous tightening of monetary policy, the increasingly severe inflation situation, the difficulty of loans for small and medium-sized enterprises, the continuous accumulation of a large number of private capital and the narrow investment channels, as a financial market with a long history,
Private lending in the form of long-term lending has become increasingly active. At the same time, the wave of information sweeping the world has spawned a new form of private lending-P2P peer-to-peer lending platform. In 2006, China established the first P2P lending.
Website, and since then showed a vigorous development trend, promoting the prosperity of private lending. However, the fuzziness of relevant laws and regulations and the vacuum of supervision lead to legal risks, which also hinder its entry to some extent.
The development of steps. Recently, events such as the outstanding bankruptcy of Antai and the alleged fraudulent running of Youyi Loan have pushed P2P online lending to the forefront.
Firstly, the problem P2P P2P lending platform is put forward.
20 1 1 On August 23rd, 2008, the General Office of China Banking Regulatory Commission issued the Notice of the General Office of China Banking Regulatory Commission on the Risk Warning of Renren Loan, which revealed seven risks in the intermediary service of Renren Loan. Renren loan, that is, the risk of P2P online lending platform has attracted more and more attention.
P2P(peer-to-peer) network loan platform, referred to as "Renren Loan" for short, is a network platform for lending from person to person through the Internet, rather than through financial institutions such as banks.
P2P peer-to-peer lending platform is the product of private lending informationization. On the one hand, more and more private idle funds cannot find an effective investment path; On the other hand, with the rapid development of computer technology and network.
In the information age, the Internet has greatly improved the speed of information dissemination and expanded the coverage of information. -P2P peer-to-peer lending Platform Private Lending Network Platform came into being with the east wind of informationization. P2P network
The lending platform uses information technology and relies on the network platform to provide the docking of lending information, which infinitely enlarges the customer base and breaks the original "face-to-face" lending model. Both borrowers and borrowers can publish information through the network and borrow funds.
A series of lending processes such as loans.
Second, the main manifestations of legal risks P2P P2P lending platform
The domestic P2P online lending industry has developed rapidly and has formed a certain scale. However, while online lending platforms emerge in an endless stream, it also exposes the defects of the platform itself and the legal environment. [ 1]
(1) The borrower's personal credit risk is high.
At present, P2P peer-to-peer lending platforms mainly evaluate borrowers' credit according to the information provided by borrowers, such as identity certificate, property certificate, payment record and acquaintance evaluation. On the one hand, this
This authentication information is easy to be tampered with, which provides a wrong basis for credit evaluation; On the other hand, even the true certification materials are one-sided, and it is impossible to fully understand the borrower's information and make a correct and objective credit evaluation.
(B) improper operation is easy to step on the red line of "illegal fund-raising"
At present, the creditor's rights transfer mode adopted by some P2P peer-to-peer lending platforms has aroused widespread concern and heated discussion. Ms Wu Xiaoling, deputy director of NPC Financial and Economic Committee, said that some P2P peer-to-peer lending platforms have the shadow of illegal fund-raising, so we should guard against risks.
The creditor's rights transfer mode adopted by some platforms is to transfer creditor's rights through personal accounts, making the platform a hub for capital exchanges, not the only one.
A pure intermediary between borrowers and lenders. The transfer of creditor's rights is to reorganize the creditor's rights and transfer them to the lender through the double division of term and amount. Its essence is asset securitization. This model can easily be regarded as the model of many countries.
Unspecified financial managers absorb funds, which is very similar to "illegally absorbing public deposits"
(C) the source of funds is difficult to review
P2P peer-to-peer lending is funded by lenders who hold idle funds. These funds are generally from legitimate sources, but the illegality of their sources cannot be ruled out. At the same time, P2P online lending platforms often lack the means to review the sources of funds. Therefore, these online platforms are at risk of being used as money laundering tools or engaging in usury.
(d) Low security of deposits.
P2P network loan platform involves a large number of capital transactions, because the loan funds are not immediately credited to the accounts of both borrowers and lenders, it will generate funds in transit. Huge funds in transit are controlled by the loan website, if
When the website opens a third-party account to issue loans on its behalf, it is easy for insiders to illegally misappropriate funds and illegally raise funds when the internal control procedures of the website fail and the website staff neglect self-discipline or are used.
Criminal behavior.
(E) It is difficult to supervise the use of post-loan funds.
There are no perfect laws and regulations to regulate the tracking of post-loan funds, such as how to ensure that the borrower uses the funds according to the promised purposes instead of engaging in illegal and criminal activities. "the Supreme People's Court about people.
Article 13 of Several Opinions of the People's Court on the Trial of Loan Cases stipulates: "In the loan relationship, the person who only plays the role of contact and introduction does not bear the guarantee responsibility." Therefore, when the borrower fails to repay the principal and interest on time, the website only has
It acts as a chaser. If the amount of a single small loan is small, the cost of chasing money is hard to make up.
(VI) The financial privacy rights of both borrowers and borrowers cannot be effectively protected.
P2P lending website provides a platform for both borrowers and borrowers to publish lending information. General websites require borrowers to provide personal identity and property information, on the one hand, to give borrowers the credentials to choose borrowers, on the other hand,
It also serves as the basis of credit evaluation. If the secrecy technology of the website is cracked, the personal identity and property information provided by the borrower to the website will be leaked, and the borrower's privacy right cannot be effectively protected.
Third, P2P P2P lending platform legal risk reasons
(A) the regulatory body is not clear
Since the birth of private lending network platform, its nature has been vague and there is no clear management department, which has caused a regulatory vacuum. In Wenzhou and other areas,
P2P platform in peer-to-peer lending is supervised by local financial offices, but the rationality and legality of supervision by financial offices are still debatable. In addition,
P2P websites also need to be registered in the telecommunications management department, and the business category is "Internet information service", which needs to be carried out in accordance with the Regulations on Telecommunications Management and the Regulations on Company Registration Management. Due to P2P
Microfinance website is a network platform for private lending, involving a large number of capital transactions. Whether the business supervision is comprehensive and prudent is related to the lender's capital security, whether it can operate normally and legally, and whether private lending can be legally owned.
Proceed in sequence.
(B) the credit system is not perfect
The development of credit information industry in China is not long. Compared with foreign developed countries, the basic rules of credit investigation market management and credit investigation activities have no legal basis, and there is no unified system and norm for credit investigation business activities, and some are "credit investigation"
Institutions engaged in illegal information collection activities in the name of disrupting market order. Moreover, it is incorrect that each department conducts credit investigation separately, while the credit investigation center of the People's Bank of China conducts credit investigation, and each functional ministry of the State Council conducts credit investigation separately.
The credit industry is systematically planned. P2P peer-to-peer lending platform has not established its own credit information system. Most websites only use the information provided by borrowers themselves to roughly judge their credit degree, which leads to peer-to-peer lending letters.
Rating has always lacked objectivity and rationality.
(C) market access standards are not clear
Since the P2P peer-to-peer lending platform only needs to be registered with the administrative department for industry and commerce in accordance with the Regulations on the Administration of Company Registration, it conforms to the Measures for the Administration of Internet Information Services and the Detailed Rules for the Administration of Internet Websites.
Communication management department for the record, so its establishment conditions are the same as other limited liability or joint stock limited companies, and the market access standards are not special because of its "private lending intermediary" nature.
The unclear market access standards of P2P microfinance websites have caused a mixed situation in this industry, which is not conducive to protecting the legitimate interests of lenders and affecting the healthy development of the private lending market.
(D) the lack of a unified industry norms
Peer-to-peer lending platform is just one of thousands of websites, but its business involves private lending and financial markets. If the operation is improper, it will cause great adverse effects. But the business type at the time of registration.
The category is "Internet information service business", which is general and general. There is no relevant laws and regulations to refine and standardize its business, and there is no unified and meticulous operating standard in the industry, which gives the website greater freedom.
Operating space, but also prone to edge ball business activities, posing a threat to the security of private finance.
(E) The market exit mechanism is not perfect.
There is no specific legal provision on how to withdraw from the P2P lending platform and how to protect the legitimate rights and interests of both borrowers and lenders when withdrawing from the market, which threatens the interests of both borrowers and lenders. The collapse of online lending platform hahaha loan has prompted people to think more deeply about the protection of investors' interests in the process of P2P website market withdrawal.
Therefore, the emergence of P2P peer-to-peer lending platform has played a positive role in activating private finance and solving the loan problems of individuals and SMEs. At the same time, there are a lot of legal risks. At present, China does not have a mature legal system to regulate P2P lending, and it is urgent to improve the legal norms of P2P lending.
Four. Suggestions on Preventing the Legal Risks P2P P2P Lending Platform
The emergence of P2P peer-to-peer lending platform has solved the contradiction between the massive accumulation of private capital and the increasing marginal credit gap to some extent, and improved the allocation efficiency of marginal credit market. But the same
At the same time, the online lending platform also has legal risks, and the lack of relevant supporting measures hinders its further development. Therefore, it is particularly important to create a good market economy environment in peer-to-peer lending and establish and improve supporting measures and norms in peer-to-peer lending.
Yes
(A) clear the legal nature of private lending network platform
Regarding the legal nature of P2P peer-to-peer lending platform, there is also a dispute between "quasi-financial institution" and "pure credit service intermediary" in practice and academia.
Quasi-financial institutions have no authoritative definition and legal division. Generally speaking, quasi-financial institutions refer to institutions that are closely related to local economic development, are not included in the scope of supervision by the state financial supervision department, and do not have the Financial License issued by the state financial supervision department, but are engaged in financial business. [2]
Peer-to-peer lending platform does not directly participate in financing activities, and is not a party in the lending relationship, but only provides consultation, places and facilitates transactions. Therefore, it is not a financial institution in the strict sense, and it does not touch customers' funds. It is more appropriate to define it as a "credit service intermediary" that provides services for both borrowers and borrowers, and it is also more conducive to its further standardized and healthy development.
(B) establish a sound credit system
According to China's Interim Measures for the Management of Basic Database of Personal Credit Information, personal credit reports are currently only used by commercial banks, urban credit cooperatives and other financial institutions, people's banks and consumers established in People's Republic of China (PRC), and peer-to-peer lending intermediary platforms do not belong to legal users.
Therefore, we should conform to the development of the times and improve the credit information system: first, establish and form an internal credit information system, formulate a unified credit evaluation standard, and establish a blacklist exchange mechanism [3]; Secondly, actively promote the docking with external credit information system to realize the intercommunication of credit information between different industries; Furthermore, establish a credit punishment mechanism to encourage customers to make wise choices in the balance of interests and attach importance to their own credit construction; Finally, pay attention to protecting customer privacy in the process of credit investigation.
20 12 12 on February 26th, the the State Council executive meeting deliberated and adopted the "Regulations on the Administration of Credit Information Industry (Draft)". According to the person in charge of the relevant departments of the central bank, the regulations strictly manage the personal credit information business.
Specific provisions have been made in terms of market access, information collection and query scope. The Regulations on the Administration of Credit Information Industry is of great significance to the development of China's credit information industry and indispensable to the construction of China's credit information system.
a part of
(C) to build a multi-level supervision system
1, local government supervision. Private lending network platform belongs to the category of micro-finance. Private lending has strong regionality and locality, and once there is a problem, the impact and impact are also regional. [4] Regulatory power should be decentralized from the central government to the local government, and local governments should formulate industry development norms according to local conditions. The upper-level law should uniformly stipulate that P2P peer-to-peer lending platforms should be filed with local financial offices, and accept the supervision and management of local financial offices, so as to legalize the supervision status of financial offices. At the same time, establish an information communication mechanism between the central and local governments.
2. Self-discipline of trade associations. Industry self-regulatory organizations play an important role in financial supervision in various countries. Self-regulatory organizations are responsible for formulating codes of conduct and encouraging association members to abide by industry norms.
Self-discipline now, then protect yourself. Trade associations are professional and familiar with the laws of financial markets and the operation of financial activities. Compared with government supervision, their supervision methods are more flexible, closer to the laws of market economy, and play their role.
Unique function. [5]
3. Improve the internal control mechanism of private lending network platform. The particularity of P2P private lending network platform determines that it must establish a strict internal control mechanism and make it according to different operating modes.
Refine the operation norms, rules and regulations, standardize the behavior of employees, improve their professional skills, legal awareness and professional ethics, so as to ensure the stability and security of network platform operation.
(4) Adopt non-prudential supervision mode.
There are three main modes of international supervision of lending institutions. For institutions that do not absorb deposits and have small external effects, they generally adopt non-prudent supervision. For the supervision P2P P2P lending platform, its objectives are
It is to reduce the risk. However, relying on the development of network information technology, P2P websites need a relaxed innovation environment. Too cautious and strict regulatory measures may inhibit its innovation, lead to the loss of customers and hinder its development.
Therefore, the supervision of P2P peer-to-peer lending platform should adhere to the principle of non-prudential supervision and seek a balance between development and supervision.
1, market access supervision-setting market access standards
Market access supervision refers to examining, confirming or restricting the business qualifications and capabilities of financial institutions according to law, and giving them corresponding rights and behaviors. [6] Market access supervision, as the primary link of effective supervision, controls the number, structure, scale and distribution of enterprises within the scope of national economic and financial development planning and market needs.
At the same time, in order to ensure the activity of P2P online lending platform and promote the prosperity of private lending industry, a filing system can be adopted for the market access of P2P microfinance websites. Before the establishment of each website, in addition to being registered in the administrative department for industry and commerce and filed in the Ministry of Industry and Information Technology, it should also be filed in the local government supervision department to facilitate the supervision and follow-up management of its market access.
2. Supervision of going concern enterprises
(1) Standardize the legal relationship between the borrower and the P2P online lending platform by improving the contract binding mechanism.
Because P2P websites borrow money through the network, its operation process is completely paperless, and general websites provide formatted agreements and contract templates, which is not conducive to protecting the legitimate rights and interests of borrowers. This requires the regulatory authorities to stipulate the basic principles of the service agreement according to the actual situation. [7]
(2) Cooperate with banks to realize the third-party depository of funds.
In P2P peer-to-peer lending, lenders and borrowers exchange funds through the network platform, which will generate a lot of funds in transit. For the management of depository funds, we can learn from the third party of customer transaction settlement funds in the securities industry.
Custody system Third-party deposit of customer funds can effectively prevent network platforms or individuals from illegally misappropriating customer funds, ensure the safety of funds, and also help to achieve bankruptcy isolation. In ord to control risks in that financial industry,
It plays an important role in effectively protecting the interests of lenders and maintaining the stability of the financial system.
In addition, P2P peer-to-peer lending platform can also cooperate with banks, break away from third-party payment, and directly transfer loan funds into the bank accounts of borrowers and borrowers through banks, thus reducing the inconvenience caused by third-party payment to the elderly and reducing the expected default rate caused by delayed payment by third-party payment.
In short, the platform should adhere to the "three noes" principle of "no deposit, no loan, no guarantee", and insist on the "intermediary" status of the platform.
(3) Protect customer privacy.
During the operation of P2P peer-to-peer lending platform, the transactions between borrowers and borrowers will inevitably involve personal information of both parties, which will be made public on the website. Therefore, telephone number, family situation,
For the identity information of professional and other natural persons, the website can only provide inquiries to members who have passed strict identity authentication, and should not provide information with strong privacy such as ID number to avoid being used by criminals.
Use the borrower's personal privacy to commit fraud and other illegal and criminal acts.
3. Market exit supervision-improve the market exit mechanism.
As the main body of the market, P2P online lending platform must follow the competition mechanism of "survival of the fittest". Due to the particularity of P2P online lending platform, whether its market exit mechanism is scientific and reasonable is related to whether the interests of both borrowers and lenders can be protected, and even affects the order of financial markets.
(1) Disposal Principles in Market Exit Mechanism
For financial institutions, their market withdrawal has a great influence on the financial market order, and the initiative to start the market withdrawal mechanism is mostly handed over to the financial supervision department. As a financial intermediary service organization, P2P online lending platform should be supervised by its supervision institution, and take different administrative and judicial measures according to the different risks monitored in the supervision process.
(2) the protection of the lender's interests in the market withdrawal.
In the process of P2P platform withdrawing from the market, how to protect the interests of lenders is very important. First of all, the clearing institution should issue an announcement in advance to remind the borrowers and borrowers of the risks in the platform and give the borrowers some compensation.
It's time to repay the loan. For the loan that the lender has not recovered after a certain date, the website should pay in advance; Secondly, due to the existence of deposit funds on the P2P online lending platform, and the interest attribution of deposit funds is not clear, you can
Establish a lender's risk fund, and use the risk fund to protect the lender's interests and compensate its losses when the website exits the market.
(five) cooperation with private lending registration service center.
20 12 On March 29th, Wenzhou Private Lending Registration Service Co., Ltd. (Wenzhou Private Lending Registration Service Center) obtained the business license in Lucheng Branch of Wenzhou Administration for Industry and Commerce and successfully completed the registration. Wenzhou Private Lending Registration Service Center will operate as a company, and its business scope involves information registration, information consultation, information release and financing docking services.
P2P peer-to-peer lending platform is located in the private lending registration service center, where both borrowers and borrowers register, which can effectively prevent risks. In Wenzhou, if there is a dispute over the loan registered by the civil registration service center,
You can go through the procedure of financial court, and the registered information will become evidence, which is conducive to the rapid settlement of disputes, providing protection for both borrowers and lenders, and will also be more conducive to the standardized and sunny development of P2P peer-to-peer lending platform.
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