The focus of the regulation of non-government borrowing and legislative proposals Yue Cai Shen Abstract: The basic way to solve the problem of private lending in our country is to form institutional incentives through legal innovation, and to guide the optimal allocation of financial resources. Private lending legislation should adopt the combination of natural evolution and construction, general norms and classification norms. Combined multi-level legislative system. With reference to the United States, the United Kingdom, Hong Kong, and China's ancient relevant legislative experience, combined with the current judicial practice of the People's Court and the trial status of China's small loan companies, we should promptly modify the relevant laws and formulate specific legal documents. The special legislation on private lending should only regulate the commercial lending activities of institutions and individuals that specialize in the business of lending for the purpose of making profits. The focus is on the regulation of subject access, lending rates, operating areas, and the source of money for lenders. .
After more than 30 years of reform and opening up, China is shifting from a capital-poor country to a capital-power country. The scale and influence of private lending has rapidly expanded to become the focus of social concern. In May 2010, the State Council issued “1. The Paths and Models of Private Lending Regulations. Although there are many years of discussion regarding the regulation of civil lending, there are two basic issues that have not been resolved: First, what private lending practices should be included? The scope of legal regulation, that is, how to determine the boundaries of legal regulation of civil borrowing; Second, which laws should regulate the civil borrow goods, and whether it should establish a legal text that regulates and regulates non-governmental goods. The core of the former question is how to legally determine the scope of regulating civil lending. The core of the latter issue is how to choose the legislative path and mode of civil lending. How to solve these two problems has determined the basic ideas, goals, and systems for the legislation of private lending.
(1) Whether the path of selecting key regulations should establish a legal document that specifically regulates civil lending and how to establish a legal system that regulates civil lending has theoretically been controversial and has always been wavering in legislation. The key to solving this controversy lies in properly distinguishing the types and nature of the folk borrowed goods, and then choosing the appropriate legislative strategies and regulatory paths according to the different types and characteristics of the folk borrowed goods. From the legal point of view, the non-governmental borrowing is the right to use the fund to transfer the funds for a certain period of time, and the borrower repays the principal and interest after the expiration date. There are also doctrines that when the money is delivered, it transfers the transfer of ownership, that is, the principle of all ownership. Theoretically, there are many ways to classify the folk borrowed goods. The act of not transferring funds with or without compensation for the purpose of making profits should be recognized as a civil act. The folk public goods that the general public takes in life are mostly civil acts. However, the circulation of money for the purpose of collecting interest has the function of capital financing and has the nature of commercial behavior. If a natural person, legal person (a financial institution such as a bank or a financial institution does not discuss it here because of a special law) or an unincorporated organization will issue payment as a business activity, it is profitable and repetitive, and it should be a commercial activity. This multiplicity of the nature of the folk borrowing behavior not only determines the multi-level and complexity of the relevant legislation, but also teaches and doctoral supervisors of the Southwest University of Political Science and Law.
See Liu Baoyu, Property Law, China Legal Publishing House, 2007, pp. 242-243.
It also became the basic basis for choosing a regulatory path.
Judging from the laws of the financial system changes, China’s private lending is currently undergoing a process of transition from a marketized explicit credit phase to a standardized legal credit phase. However, not all forms of private credit can or can be incorporated into the legal system to regulate it. Small-scale private lending organizations are more suitable to exist in the form of folk to meet the financing needs of different groups. 2 From the point of view of legislative design, it is not only difficult for the establishment of a comprehensive regulatory legal system for civil lending, but it is also not necessary. Such an example of legislation worldwide has so far been extremely rare. Therefore, the regulation of private lending legislation should not choose the path of comprehensive regulation. Instead, it should adopt a path of major regulation, that is, only certain important aspects need to be determined in a variety of private lending. According to this line of thought, the legislative system for regulating private lending should be a multi-layered legislative system that combines general and specialized regulations. Under a multi-tiered legislative system, according to different factors such as the behavior of borrowing and lending, the subject of lending, and the purpose of borrowing, the models of separate regulation are adopted by ordinary laws, relevant subject laws, and special private lending laws. According to the structure of China’s financial market and the status quo of the legal system, the special legislation governing private lending should focus on the regulation of commercial lending conducted by institutions and individuals that specialize in the business of lending for the purpose of making profits, mainly including access and lending to lenders. Interest rates, borrowing regions, etc. are regulated. For general private lending, that is, non-specialized private lending, because it usually involves only the rights and obligations of the lender and the borrower, it will not affect the interests of other people. It can be regulated by general civil law, contract law and other common civil laws. There is no need to introduce too many state interventions, nor do we need to enact specific laws to regulate them.
(2) Adopting a model of classification and regulation For the loans and loans of institutions and individuals that are specifically engaged in lending business for the purpose of making profits, it is not appropriate to adopt a model of comprehensive regulation by a law, but to distinguish the legislative arrangements where classification regulations are applied in different situations: (1) For private equity funds, because they are different from general direct financing, the main investment areas are stocks and bonds in the securities market, rather than being directly invested in the real economy or solving people's needs, they should be included in the legal system of the capital market. Regulation (3) For cooperative foundations and financial service companies that have cooperative financial nature in indirect financing, their nature and function are located in private mutual assistance and should be regulated through the establishment of a special legal system for cooperative finance. The "Provisional Regulations on the Management of Rural Mutual Cooperatives" formulated by the China Banking Regulatory Commission, etc. With the development of urban-rural co-ordination and the promotion of urban-rural economic and social integration, the relevant legislation on cooperative finance should expand the scope of adjustment; (3) Underground banks (private banks) may accumulate high risks due to their separation from the control of the law. Therefore, it is necessary to set reasonable access conditions, incorporate it into the banking financial institution system, and implement formal and effective supervision.
The China Banking Regulatory Commission has promulgated the "Provisional Regulations on the Management of Rural Banks" that is roughly the way. *4) For financial institutions that specialize in loan business and do not absorb deposits, such as financial companies, loan companies, etc., they should be subject to special legal systems according to their different nature. To be regulated, such as the "Administrative Measures for Enterprise Group Finance Companies" promulgated by the China Banking Regulatory Commission, and the "Interim Provisions on the Administration of Loan Companies".
The above four kinds of private lending have special legal nature and are more properly regulated by the relevant subject law. Special private lending legislation should not stipulate the lending behavior of these entities. In accordance with the method of classification and regulation, the legal normative system for regulating private lending should include three parts: (1) General civil law, contract law, and other general civil laws, standardizing non-specialized private lending practices, *2) related subject laws, and special norms. (3) A special private lending law stipulates the behavior of loans and loans for institutions and individuals that specialize in the business of lending for the purpose of making profits. The private lending legislation discussed in this paper is mainly directed at the third part.
In the private lending legislation, the use of profitability as a standard to classify private lending into civil private lending and commercial private lending is an important basis for designing and reviewing the scientific nature of China's private lending legislation. The current law of our country protects private lending in the civil sense, whether or not it is paid, without violating the four-fold benchmark interest rate limit. For civil loans with commercial nature, if they have not been approved and registered by statutory authorities, they are classified as illegal financial acts (for example, see Chen Xiangcong, “Research on the Legislation of Private Equity Funds in Chinaâ€, People's Publishing House 2009, p. 140).
It has a direct impact on the stability of the financial system and the entire national economy. As of November 2010, the bank’s total assets exceeded 92 trillion yuan, accounting for more than 90% of the total financial industry assets. The vast majority of the banking industry’s revenue comes from the loan payment business. In order to maintain the security and stability of the financial system and ensure the smooth implementation of the central bank's monetary policy, all countries impose relatively strict supervision on the access of banking financial institutions. In addition, the basic economic system with public ownership as the main body requires state-owned enterprises to occupy a dominant position in important areas involving the national economy and people's livelihood, and there is a conflict with arbitrary commercialization, commercialization, and expansion of the borrowing business. Therefore, under the current circumstances in China, the lifting of financial repression is undoubtedly the direction of private lending legislation, but determining the appropriate legal restrictions should still be the basic principle of legislation.
When discriminating between civil non-governmental borrowing and commercial non-tradable goods, it should also be noted that paid compensation and profit are two concepts that are both related and different. It cannot be recognized as a profit-making act solely because of compensation. The latter requires tone continuity and occupational characteristics. Most countries’ laws provide that ordinary civil entities occasionally engage in profit-making activities and are not commercial activities. Article 340 of the Money Lenders Act of the State of New York states clearly that individuals or businesses that occasionally issue payments in the state do not need to comply with the "prohibition against operating without a license". In practice, the benefits of private borrowing tend to be specialized. Some civil entities repeatedly sue lawsuits, and evade supervision in the form of civil non-governmental loans. In fact, they are engaged in “Illustration of Illegal Financial Institutions and Illegal Financial Business Activities†No. 4 Article Illegal financial services. How to legally regulate this kind of behavior should be a key issue that must be resolved in the civil lending legislation.
Second, regarding the regulation of private lending entities. Since it is not appropriate to regulate civil lending goods comprehensively, then what kind of subjects should be subject to the regulation of lending, which is also the focus of controversy in theory and practice, and must be resolved first in legislation. A difficult point. On this issue, the following two points are the most critical.
(I) Establishing an Access System for Commercial Lending Subjects In the current legal system, legal norms at multiple levels involve the admission of private borrowers. At the legal level, Article 90 of the “General Principles of Civil Law†establishes the legitimacy of private borrowing, but does not involve the subject matter of private borrowing. Chapter 12 of the Contract Law stipulates the general issues of loan contracts, and Articles 210 and 211 respectively. It stipulates the effective time and borrowing interest rate for loan contracts between natural persons. At the administrative level, Article 4 of the Measures for the Prohibition of Illegal Financial Institutions and Illegal Financial Business Activities stipulates that illegal financial business activities refer to the following activities without the approval of the People’s Bank of China: (1) illegally assimilate public deposits or absorb public deposits in disguised form (2) Unlawful fundraising to any unspecified object of the society in any name without legal approval; (3) Illegally issuing money, clearing bills, discounting bills, borrowing money, trust investment, financial leasing, financing guarantee, foreign exchange trading; (4) ) Other illegal financial business activities recognized by the People's Bank of China. At the level of administrative regulations, Article 61 of the General Rules for Payments stipulates that enterprises must not conduct borrowing or disguised debit financing services in violation of state regulations. At the level of judicial interpretation, Articles 121, 122, 123, and 125 of the Supreme People's Court’s Opinions on the Implementation of the General Principles of Civil Law refer to the borrowing between citizens and the production and operation of citizens. The interest rate of goods and interest-free borrowing between citizens." The Supreme People’s Court’s “Reply on the Issue of Determining the Effect of Borrowing between Citizens and Enterprises†stipulates that the borrowing between citizens and non-financial enterprises (hereinafter referred to as enterprises) is a private borrowing, as long as the meaning of both parties is true. If it is deemed to be valid, but it is in one of the following circumstances, it shall be deemed as invalid: (1) The enterprise raises funds illegally to the employees in the name of borrowing; (2) The enterprise illegally raises funds in the name of goods to the society; (3) The enterprise uses the goods in the name of (4) Other behaviors that violate laws and administrative regulations. The Rules for the Cases of Civil Cases promulgated by the Supreme People's Court on April 1, 2008 implemented the loan contract disputes into four categories according to the type of the borrower: (1) financial loan contract disputes; (2) inter-bank lending disputes; (3) corporate loan disputes (4) Civil loan disputes. In November 22nd, 2010, the Supreme People's Court issued the "Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Proceedings," which specifically explained the application of illegally assimilated public deposits and fund-raising fraud.
According to the above-mentioned laws, regulations, administrative regulations and the judicial interpretation of the Supreme People's Court, legal folk borrowing refers to the borrowing between natural persons, between natural persons and legal persons, and between natural persons and other organizations. The borrowing of ordinary civil behaviors between natural persons is permitted by law, but commercial and commercial commercial borrowings between companies have always been rejected by law. From the perspective of the role of non-governmental borrowing goods and foreign countries4, see Gao Chen, “Legislative experience of breaking down the total assets of banking financial institutions, commercial civil lending can effectively overcome many shortcomings of state credit, and its legality and legitimacy should be legalized. The affirmation. 5 From the reality of our country, on the one hand, the distribution of financial institutions is uneven. Many residents in the central and western regions are unable to enjoy the minimum financial services. According to the statistics from the China Banking Regulatory Commission, as of the end of June 2009, there were still 2,945 townships in the country without banking network outlets, which were distributed in 27 provinces (autonomous regions and municipalities), 2367 in the western region, 287 in the central region, and 291 in the eastern region. Among them, there are 708 townships without any financial services, accounting for 24% of the total number of blank townships in financial institutions and distributed in 20 provinces (autonomous regions and municipalities). On the other hand, the existing formal financial institutions do not have the ability to fully digest the financing needs of the entire society. The financing difficulties of the SMEs have always plagued China's economic and social development, and commercial private lending has occupied the rural lending. More than 20% share. From an international perspective, credit institutions are a multi-layered organizational system, relying entirely on formal financial institutions, and large banks cannot cover all financing needs, and the risks are too concentrated. The United States, the United Kingdom, the Commonwealth of Australia, South Africa, Hong Kong and other countries and regions have all established a legal system for regulating private lending. Promoting the development of informal financial institutions from a institutional perspective and advancing the establishment of non-governmental credit systems should also become China’s current financial market construction. The important content. 8 In order to meet the needs of economic and social development, the seven “No. 1 Documents†of the central government since 2004 have involved the issue of “developing rural microfinance and microfinance services.†In May 2008, the People's Bank of China and the China Banking Regulatory Commission jointly issued The Guidance Opinions on Pilot Projects for Small Loan Companies (hereinafter referred to as “C Opinionsâ€) encourages and guides provinces to actively conduct pilot projects for small loan companies. The issuance of the “Opinions†is a landmark event in the history of China’s private finance development. The development of non-governmental lending has provided an opportunity. The “Lenders Ordinance (draft)†(hereinafter referred to as “the draftâ€) drafted by the PBC in October 2007 was submitted to the Legislative Affairs Office of the State Council, and was included in the second-level legislation of the Legislative Affairs Office of the State Council in 2009. The “Regulations†allow qualified individuals to register to engage in lending after market registration, and provide that qualified companies and individuals may start lending business. The “General Rules on Loans†submitted by the People's Bank of China to the Legal Affairs Office of the State Council was amended in 2010. The draft expands the scope of lending entities and allows non-financial companies and individuals that have not been established as lenders to be approved for approval. The total limit, under the premise of items and interest income in lending practices, further easing the main access to private lending controls.
In light of the relevant provisions of the “Opinions†and the “Examples†and the current status of the development of micro-credit companies, the author believes that there are two aspects that can be used to regulate the access of commercial lenders: the first is to define the subject by determining the registered capital. range. Since lenders only "loan only," the capital-intensive industry as a business currency, the registered capital should be higher than the "Company Law" for the general company's general requirements, "Opinions" provides for the registration of limited liability company's micro-credit companies The capital must not be less than 5 million yuan. The registered capital of a small loan company limited by shares of a company limited by shares must not be less than 10 million yuan, which we think is appropriate. The high threshold can filter out some unqualified lenders to enter such risk industries. Provides a barrier to the construction of the entire financial safety net. Although some U.S. states do not have a high entry threshold for financial companies,9 such as the lowest registered capital of California established financial companies in the United States is 250,000 U.S. dollars, but the U.S. market system and market restraint mechanisms are relatively mature, these companies must accept With more market constraints, it is only afterwards that they can integrate capital loans through market channels. At present, China’s market system is still not good, and it is necessary to appropriately limit the access scope of the private lending market through registered capital. Taking into account the traditional status of natural persons in the field of private lending and the status quo of relevant national legislation, the qualification of natural persons as lending principals should be determined by applying for registration. Natural persons shall assume unlimited liability according to law and may not require capital requirements. However, when considering the qualifications of natural persons as subjects of private lending, they should also consider their exit mechanisms and personal bankruptcy systems, and they should be included in the legislative agenda as supporting systems. If there is no personal bankruptcy system, natural persons as the main body of private commercial lending can not effectively assume unlimited responsibility, thus affecting the implementation of the private lending system.
The second is to limit the scope of the subject through the qualification examination of applicants. The review of lender qualifications should pay attention to the “soft information†review of applicants, major shareholders, and senior management personnel. Unlike general industrial and commercial enterprises, private lending industry can easily contact crimes, such as hiring sub-pariae organizations for debt collection, money laundering, and issuance. Loan sharks, forced fraudulent transactions, etc., must therefore be vigilant to those uncomfortable subjects on entry barriers (see, eg, ref. 2, p. 74).
See Han Jun et al., China Rural Finance Survey, Shanghai Far East Press, 2009, p. 224.
See Zou Dongtao, Chief Editor of China's Economic Development and System Reform Report: 30 Years of China's Reform and Opening-Up, Social Science Press, 2008, p. 145.
In the United States, a finance company (finance company) is a non-banking company that provides loans to individuals or businesses. It is different from commercial banks, credit unions, savings and loan associations, cooperative banks, and savings banks. Similar to China’s microfinance companies, it has become the United States. The second largest source of commercial credit.
Criminal criminal applicants) entered the market for folk borrowing. Applying the shipper licence in New York State of the United States requires a rigorous and complex “background review†process. This requires as many as 11 items of information to be submitted, including historical records of credits, civil litigation and bankruptcy litigation records in the past decade, and crimes. Records (including felony, misdemeanor, and non-compliance), education experience, etc. In addition, partner shareholders, executives, directors, etc., need to submit a fingerprint program to review the criminal record. To apply for a money lender licence in Hong Kong, China first investigates whether the applicant has a triad background and confirms “innocence†before submitting it to court. However, it is not decided by the judge alone, but by two citizens in a joint review. Only after passing the unanimous approval can the license be issued. The special legislation of China's private lending should focus on the extent and conditions of this aspect.
(II) Relaxation of the control of the borrowing between enterprises The effectiveness of borrowing between enterprises has been a matter of concern. According to the Measures for the Prohibition of Illegal Financial Institutions and Illegal Financial Business Activities and the provisions of the General Regulations, such borrowings are in force. The above is invalid. The Supreme People's Court issued in 1996 the "Reply to the question of how to deal with the issue of non-repayment of borrowers overdue by the borrower of the company's loan contracts" stipulated that: The enterprise's contract of borrowing violated relevant financial regulations and was an invalid contract. In August 2003, the China Securities Regulatory Commission and the State-owned Assets Supervision and Administration Commission jointly issued the Circular on Regulating the Capital Relations between Listed Companies and Related Parties and Several Issues concerning External Guarantees of Listed Companies, prohibiting listed companies from lending funds to controlling shareholders and their affiliates on a paid or uncompensated basis. Therefore, in the judicial practice, the court basically confirms the contract between the company’s borrowed goods or disguised debited goods as an invalid contract, and in the specific applicable laws, some courts apply the provisions of Article 52, paragraph 4, of the Contract Law. The damage to the public interest is based on the finding that the contract is invalid.Some courts directly apply scholars to put forward different opinions, and from the perspective of the contract law, company law, etc., the validity of the contract between companies to borrow goods should be recognized.*From the nature, between enterprises The nature of the borrowed goods is rather special. The company that serves as the shipper is not the subject that specializes in this business. It is generally only due to borrowing. Businesses have business transactions or related relationships and they are involved in borrowing. The act of borrowing not only exceeds the scope of civic and civil lending, but it does not involve all commercial commercial lending, but intervenes between the nature of commercial affairs and the nature of commercial affairs. In view of this feature, we believe that legislation should adopt a special normative approach, and should not be liberalized as if it were a civil civic loan, nor should it be treated like a SP-like entry barrier for commercial civil lending. However, in the practice of foreign legislation, the New York State “Money Lenders Act†excludes occasional lending by individuals and businesses from commercial activities, and does not require the application for a money lender license. It is recommended that China revise the current laws and liberalize some of the borrowing between enterprises, such as upstream and downstream supplier relationships, parent-subsidiary relations, and borrowing due to production needs, etc., which should be stipulated as legitimate and effective borrowings. It is not feasible or feasible to fully release the borrowings between enterprises, because the full liberalization of such borrowing is equivalent to abandoning banking assets to a certain degree. The business entry threshold will inevitably affect the stability and security of the financial market and financial system. Therefore, by enumerating ways to liberalize part of the borrowing between enterprises, the law should still retain general control over the borrowing between enterprises.
Third, restrictions on private lending rates Interest rates are the core issues in regulating private lending. Judging from existing legal norms, the legitimacy of private lending is closely related to the level of lending rates, and the regulation of interest rates on private lending has been determined. The degree of openness of the private lending market and the degree of protection of private lending.
(1) The interest rate limit should be set on October 28, 2004. Article 1 of Article 2 of the Circular on Adjusting Deposit and Purchase Rates of Financial Institutions promulgated by the People's Bank of the People's Republic of China on October 28, 2004, financial institutions (excluding urban and rural credit cooperatives) There is no longer an upper limit, the loan rate remains unchanged, and the lower limit of the loan rate is still 09 times the benchmark interest rate. According to this provision, some people think that since there is no upper limit on the interest rate on bank loans, the interest rate on private lending should also be liberalized. In fact, the discussion on the interest rate for borrowing has a long history. The actual interest theory, monetary interest theory, and Marx's political economics all have different arguments. In the market, interest is the price of financial financing. Since it belongs to price, it necessarily involves disputes over price control.
Even in western countries where the market economy is relatively mature, there have been major differences. Jeremy Bentham, a scholar who advocates the abolition of interest rate controls, believes that people with sound minds should not object to bargaining in the course of payment.
Opponents believe that his claim is completely idealistic and has no realistic basis at all.
From the perspective of economic relations, the actual status of the lenders and borrowers is not equal, and lenders have a clear superior position relative to consumers. Lack of bargaining power between lenders and lenders does not have the realistic basis for fair trade, and they rely on lenders. There has been no formation of a loan market where the borrowers can bear reasonable interest rates. If there is no legal restriction, unfair trades often arise. Historically, the legal system regulating private lending rates has a long history. The 166th section of the Tang Dynasty's “Music Order†and “Mingshi†volume section 168 of the “money account†section of the “Household Law†and the 147th section of the “Qinghu†section of the “Equal Law†volume all stipulate the restrictions on the interest rate on loans. From a cultural point of view, interest rate restrictions on private lending have a strong social appeal. The well-known domestic opera Bai Mao Nu and Shakespeare’s immortal masterpiece “Nice Trader†have all exposed the dangers of usury, even in the Jing Jing. The description of usury. From the point of view of social development, usury has the Matthew effect that leads to “the poor are getting poorer and the rich are getting richer†and the role of accelerating the division of social classes. From a political point of view, usury has often become one of the reasons for the dynasty replacement in history. After the founding of New China, the elimination of usury was a landmark event in the new society.
Usury is widespread in the more developed regions of the private economy and in rural areas, and the more economically underdeveloped regions, the higher the interest rate for private lending. Some scholars have examined the history of China’s private lending history since the 1930s and the 19th century in the United States. In the process of cracking down on Chongqing in 2009, the police disclosed data that the Chongqing loan sharks exceeded 30 billion yuan, accounting for 1/3 of Chongqing’s annual fiscal revenue. The black and evil gangs forcibly lend money at an alarmingly high interest rate and then passed violence. Debt collection, which draws huge amounts of illegal income. In August 2009, the “Economics Daily†disclosed the issue of local usury with the theme of “Ningxia's Guyuan Loan Abundanceâ€.
Judging from many facts, restricting the price of private lending funds from the interest rate setting has prominent practical significance.
From the international perspective, most of the U.S. states that have a relatively mature market economy system have also established special anti-income loan laws. In the middle and late 20th century, the United States promoted financial liberalization under the influence of liberalism. Some people advocated the removal of interest rate restrictions, and indeed some individual states (such as Delaware and South Dakota) did so, but the subprime crisis in the United States shows that Liberalization of interest rates is one of the main reasons for the current crisis. In particular, adjustable-rate mortgages have been questioned and criticized by academics, regulators, legislators and consumer protection groups in the United States.
The “The Xiao Fei Credit Act†amended by the United Kingdom in 2006 still stipulates restrictions on the maximum interest rate and authorizes the courts to provide judicial relief.
Hong Kong, which has always been free to trade, has also imposed restrictions on interest rates for private lending. In view of the current conditions in China, we should not blindly liberalize the private lending market. Instead, we should pass legislation to directly regulate private lending rates and set a reasonable interest rate. Cap.
(2) Reasonably stipulating the limitation of the interest rate cap on the level of interest rate is related to the rights and interests of the lenders and borrowers, and it is undoubtedly the core content of the private lending system. The private lending rate is different from the government's pricing of products. The relevant legislation does not intervene in the free negotiation of interest rates between the lender and the borrower within the limits of the law. Instead, it prevents the lenders from taking advantage of the dangers of people or uses the dominant position to damage the legitimate interests of the borrowers. Article 6 of the Opinions of the Court on the Trial of Loan Cases (hereinafter referred to as “Lending Opinionsâ€) stipulates: “The interest rate of private lending may be appropriately higher than the interest rate of the bank. The people’s courts in different regions may have specific control over the actual situation in the region, but the highest More than 4 times the bank’s interest rate on the same loan (including the interest rate base).â€
The benchmark interest rate for RMB loans issued by financial institutions issued by the People's Bank of China is divided into five grades according to the time limit. The interest rate for similar loans here actually refers to the loan interest rate for the same period of the same period.
In the existing legislative precedent, Article 24 of the Money Lenders Ordinance of the Hong Kong Special Administrative Region stipulates that any person (whether a money lender or not) shall lend money at an actual interest rate exceeding 60% of the annual interest rate or make an offer to lend money. Is a crime. Article 25 stipulates that if the repayment agreement for any loan or the interest payment agreement for any loan interest exceeds 48% per annum, the actual interest rate set for this loan will be presumed for the purposes of this article based solely on that fact. The transaction is extortionate. It can thus be seen that the Hong Kong region actually stipulates two different levels of interest rate restrictions, and violates the different legal consequences of different levels of interest rate restrictions. China's Taiwan to prevent heavy borrowing in private lending! ! In the Civil Code, see Zhang Weihua, American Consumer Protection Act, China Legal Publishing House, 2000 edition, Chapter 24, Chapter 25 of 124th Old Testament Exodus. “If you lend money to my people, The poor people who are with you, you can't treat them like money-lendering people, and they can't profit from them."
See Chen Zhiwu's "The Logic of Finance", International Cultural Publishing Company, 2009 edition, No. 102 "Chongqing's Crackdown on Black Industry Loan, Wealth Loans, 1/3 of Fiscal Revenue," published in the "Economic Times" August 24, 2009.
Article 205 stipulates that if the agreed interest rate exceeds 20% of the anniversary, the creditor has no right to request for more than part of the interest.
In the United States, the regulation of high-profit goods is also very complicated and is mainly regulated by state laws. Some states have taken a more laissez-faire attitude to interest rate controls, allowing borrowers and shippers to negotiate any interest rate, such as Delaware and South Dakota, but most states still have anti-high-return goods regulations that limit the maximum interest rate. In state legislation that limits the maximum interest rate, the maximum interest rate limit usually depends on the following factors: (1) the use of the loan; (2) the type of payment; (3) the type of the shipper; and (4) the payment of money for a specific purpose. The maximum interest rate is usually a fixed interest rate, or it may be a floating interest rate depending on some index, such as the discount rate of the Federal Confession Commission. New York State’s high-yield goods usually have an annual interest rate of 16%; Washington’s high-profit goods usually have an annual interest rate of 12%, or the Federal Reserve’s 26-week Treasury bill’s initial auction quote rate plus 4 points in the first month of the contract’s signing, whichever is smaller. High; Mississippi’s high interest rate limit is 10% per annum, or federal sound and interest rate plus 5 points. Commercial payments of more than $5,000 are not subject to high-return restrictions; Arkansas’s high-profit margin for non-consumer goods is Federal Reserve. The audio rate plus 5 points is usually 17% per annum for consumer goods. Although the U.S. Congress generally does not intervene with the interest rate limit, there are exceptions, such as for salaries, * October 2006. The U.S. Congress specifically passed laws that stipulated that the annual interest rate on consumer goods distributed to servicemen and their supporters must not exceed 36%. Interest rates are essentially part of the profit rate. Therefore, the establishment of interest rate caps is highly technical in legislation, not only Need to consider the yield of productive capital and consumer funds, but also need to consider such factors as the risk of return on investment itself, the circumstances under which the contract is executed, etc. Therefore, some scholars do not agree to set a certain interest rate limit. * For high profit goods, if the rules are too high, it will not be able to protect the borrower's purpose. After the average social profit rate is exceeded, there is an objective credit for the repayment of the goods. risk. Excessive interest rates may also induce moral hazard. Some borrowers may take the risk to repay their purchases and engage in illegal profits. On the other hand, if the standards for high-benefit goods are set too low, there may be two consequences. First, borrowers do not get enough credit in the market, and there is a shortage of credit supply; second, private borrow goods from the ground Moving underground, real interest rates may rise further to compensate for legal risks. Judging from the actual experience, it is more likely that the second situation will occur. Underground banks that exist widely in China are a good example. The judicial interpretation of the Supreme People’s Court limits the interest rate to not more than four times the benchmark interest rate set by the People’s Bank of China. According to the one-year interest rate determined by the People’s Bank of China, the four-time limit is approximately 21-25%, which is converted into a private interest rate. About 2-3 minutes. With the PBOC’s upward adjustment of interest rates, the 4x limit may also reach 30%. According to the actual situation of China’s private lending, the interest rate for private lending generally ranges from 2 to 5 points, and more than 3 points for productive lending is a relatively high interest rate. If it is borrowed overnight or borrowed within a few days, the interest rate converted to the monthly interest rate will be significantly higher than the above level. Of course, factors such as regional, seasonal, monetary policy, and statutory benchmark interest rate will affect the specific interest rates of private lending. For example, the implementation of tight monetary policy in 2008 has led to a rise in the interest rates of private lending throughout the country. In addition, inflation also has an important impact on the trend of interest rates. Therefore, all of the above factors should be taken into account when determining the upper limit of the private loan interest rate.
(III) Perfecting the system of high-profit loan legal liability The harm of high-profit goods behavior is very harmful. From a micro perspective, disturbing the citizens’ normal life order leads the borrower to fall into debt abyss and become unable to self-debt. The process of debt collection is often accompanied by intimidation, fraud, and violence. Such illegal behaviors can easily breed crimes. From a macro perspective, they disrupt the normal financial order of the country, affect financial security, social stability, and the implementation of national macroeconomic policies. Although the adjustable-rate mortgage payment in the US sub-prime product is not yet a high-stakes commodity in the strict sense, it is enough to prove that the excessive interest rate will harm the financial order and financial stability.
Although Gao Li goods has many harmful effects, from the provisions of Article 6 of the Supreme People’s Court’s “Opinion on Borrowing†concerning the interest rate of private lending, the existing laws do not have real penalties for issuing high-profit goods parties.在å¸æ³•å®žè·µä¸ï¼Œå¯¹å‘放高利货基本上是å¬ä¹‹ä»»ä¹‹ï¼Œä»…ä»…ä¸ä¿æŠ¤å…¶4å€ä»¥å¤–çš„åˆ©çŽ‡ã€‚è¿™æ ·ä¸€æ¥ï¼Œé«˜åˆ©è´§å‘放者的è¿æ³•æˆæœ¬å‡ 乎为零，å¯ä»¥ä»»æ„约定高利率，其åŽæžœæœ€å¤šæ˜¯è¶…过的部分ä¸äºˆä¿æŠ¤ã€‚尽管进入å¸æ³•ç¨‹åºçš„民间借货案件近年æ¥å¤§å¹…å¢žåŠ ï¼Œä½†æ˜¯ä¸Žå®žé™…å‘生的民间借货包括高利货相比，ä»ç„¶å¾ˆå°‘。也就是说，ä¸å°‘高利货åˆåŒå®žé™…上由借款人履行了，借款人å‘薪曰贷款是一ç§çŸæœŸæ— æ‹…ä¿è´·æ¬¾æœŸé™å¾ˆçŸï¼Œå义利率和实际利率差异巨大。
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从美国和香港的ç»éªŒæ¥çœ‹ï¼Œåˆ©ç”¨åˆ‘事手段打击高利贷是其共åŒçš„立法选择。香港地区åšå€ºäººæ¡ä¾‹ã€‹è®¾å®šäº†ä¸¤ä¸ªé«˜åˆ©è´·ç•Œé™ï¼Œå¯¹äºŽä¸åŒå±‚次的高利贷规定ä¸åŒæ€§è´¨çš„法律责任。è¿å该æ¡ä¾‹ç¬¬24æ¡ï¼ˆå¹´æ¯60%的实际利率），å³å±žçŠ¯ç½ªï¼Œä»»ä½•è´·æ¬¾çš„还款å议或关于任何贷款利æ¯çš„付æ¯å议，以åŠå°±è¯¥å议或贷款而æ供的ä¿è¯ï¼Œä¸å¾—予以强制执行。æ¤å¤–，任何人犯本æ¡æ‰€è®¢ç½ªè¡ŒU）年第82å·ç¬¬33æ¡ä¿®è®¢ï¼‰ã€‚相比较1994年之å‰çš„文本，修订åŽçš„æ¡ä¾‹å¤§å¹…æ高第24æ¡æ‰€è§„定的最高惩罚é™åº¦ï¼Œç”±æœ€é«˜â€œç›‘ç¦ä¸¤å¹´å’Œç½šæ¬¾10万元â€å¢žè‡³æœ€é«˜â€œç›‘ç¦10年和罚款500万元â€ã€‚2001年至2005å¹´æœŸé—´ï¼Œé¦™æ¸¯æ ¹æ®ã€Šæ”¾å€ºäººæ¡ä¾‹ã€‹ç¬¬24æ¡å°±é«˜åˆ©è´·æ出检控的个案数目分别为26件ã€18件ã€1件ã€28件åŠ10件。è¿å该æ¡ä¾‹ç¬¬25æ¡è§„定（å³æ‰€è®¢çš„实际利率超逾年æ¯48%），å•å‡è¯¥äº‹å®žå³å¯æŽ¨å®šè¯¥å®—交易属敲诈性。在香港ç¦æ¢é«˜åˆ©çŽ‡æ”¾å€ºçš„åŒå±‚法律规制架构ä¸ï¼ŒæŠŠåˆ©çŽ‡ç®¡åˆ¶æ°´å¹³åˆ†åˆ«å®šä¸ºå¹´åˆ©çŽ‡60%å’Œ48%，是香港当时良好的商业惯例和其它å¸æ³•ç®¡è¾–区（例如英国）的法例而决定的。香港特区政府认为从执法的角度而言，第24æ¡å¤§ä½“上å¯æœ‰æ•ˆé€¼æ¢åœ¨é¦™æ¸¯è¿›è¡Œçš„高利贷活动。*åœ¨ç¾Žå›½ï¼Œå›½ä¼šè®¤ä¸ºå…¶æ ¹æ®ã€Šå®ªæ³•ã€‹ç¬¬ä¸€ç« 第八节“州际贸易æ¡æ¬¾â€æœ‰æƒç›‘管ç§äººäº¤æ˜“ä¸çš„利率问题，但美国国会并没有划定高利贷的具体范围，而是通过〈å犯罪组织侵蚀åˆæ³•ç»„织法》界定了å„州层é¢ï¼Œè¿å州高利贷法的法律åŽæžœé€šå¸¸å…·æœ‰æƒ©ç½šæ€§ï¼Œå³å¤„罚金é¢è¶…过所收å–的利率与高利贷之差。
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