关于非金融企业间借贷行为合法化的研究
发布时间：2018-11-11 01:00
【摘要】：现代企业发展迅速，竞争环境日益激烈，要想在国内及国际市场中求生存、求发展，解决资金来源问题是重中之重，尤其是对于中小型企业来说，融资难已成为其发展阶段的首要问题，他们迫切需要更为直接有效的融资手段。随着我国民间资本的累积过剩，向金融机构获得间接融资的方式已经无法满足企业的融资需求和社会剩余资金的流动，因此，企业间借贷是否应当合法化成为了社会各界广泛探讨的问题。 目前，我国对非金融企业间借贷采取的是禁止态度，但现行立法中模棱两可的条文表述使否定企业间借贷缺乏最有力的依据；而各级法院也逐渐意识到全面禁止企业间借贷所存在的缺陷和局限性，故在司法实务中越来越多地出现变相地默认企业间借贷行为效力。国内观念转变和态度软化成为了适应市场发展的必然选择。在发达国家和地区，大多以不同的方式肯定了非金融企业间借贷行为，可以说允许企业间借贷是大势所趋。那么在我国，允许非金融企业间借贷是否具有学理基础，这一行为合法化后会引发怎样的风险，如何借鉴国外的先进经验，构建出适合我国国情的非金融企业间借贷制度，都是本文研究讨论的重点。 本文除导言和结语外，分为四个部分。 第一部分对非金融企业间借贷行为的法律界定进行概述，并结合当前实践，分析现存具有代表性的借贷形式，旨在从形式上理清当前我国认定企业间借贷行为之效力的现状。第二部分对非金融企业间借贷合法化进行合理性分析，兼论合法化的正面效益与负面效应，从合法化利大于弊的角度，，得出放开非金融企业间借贷行为存在合理性。第三部分对非金融企业间借贷合法化进行可行性分析，从现行立法与司法态度以及《放贷人条例》的起草和小额贷款公司的兴起，论证合法化的境内环境土壤已逐渐形成，然后分析借鉴美国NDTL制度、香港地区《放债人条例》、P2P借贷模式，对我国非金融企业间借贷提出合法化期待。第四部分主要讨论立法设计与制度完善，从监管主体、监管原则、监管内容三方面对《企业借贷法》提出初步的制度设计，并通过《公司法》的修订，正式确立非金融企业间借贷的合法地位，完善其他相关制度。
[Abstract]:With the rapid development of modern enterprises and the increasingly fierce competitive environment, to survive and develop in the domestic and international markets, the most important thing is to solve the problem of source of funds, especially for small and medium-sized enterprises. The difficulty of financing has become the most important problem in its development stage, and they urgently need more direct and effective means of financing. With the accumulated surplus of private capital in China, the way to obtain indirect financing from financial institutions has been unable to meet the financing needs of enterprises and the flow of social surplus funds. Whether inter-firm lending should be legalized has become a widely discussed issue in the society. At present, our country adopts the prohibition attitude to the non-financial enterprise borrowing, but the ambiguous expression in the current legislation makes the negation of the inter-firm lending lack the most powerful basis; The courts at all levels are gradually aware of the defects and limitations of the total prohibition of inter-firm lending, so more and more in judicial practice there is a disguised default effect of inter-firm lending. Domestic concept changes and attitude softening has become the inevitable choice to adapt to the development of the market. In developed countries and regions, the behavior of non-financial enterprises is affirmed in different ways, so it is the trend of the times to allow inter-firm lending. Well, in our country, whether there is a theoretical basis for allowing loans between non-financial enterprises, what kind of risks will be caused after this behavior is legalized, and how to draw lessons from the advanced experience of foreign countries to construct a lending system between non-financial enterprises that is suitable for the national conditions of our country? Are the focus of this study. In addition to the introduction and conclusion, this article is divided into four parts. The first part gives an overview of the legal definition of lending behavior among non-financial enterprises, and analyzes the existing representative lending forms in combination with the current practice, in order to clarify the current situation of the validity of inter-firm lending in China. The second part analyzes the rationality of legalization of lending among non-financial enterprises, and discusses the positive benefits and negative effects of legalization. From the point of view that legalization outweighs the disadvantages, it concludes that it is reasonable to liberalize the behavior of lending among non-financial enterprises. The third part analyzes the feasibility of legalizing lending among non-financial enterprises. From the current legislative and judicial attitudes, the drafting of the "lender regulations" and the rise of micro-credit companies, it is demonstrated that the domestic environmental soil of legalization has gradually formed. Then it analyzes and draws lessons from the NDTL system of the United States, Hong Kong "money lenders regulations", P2P lending mode, and puts forward the legalization expectation to the non-financial enterprises in our country. The fourth part mainly discusses the legislative design and system perfection, puts forward the preliminary system design of the Enterprise loan Law from three aspects: the main body of supervision, the principle of supervision and the content of supervision, and adopts the revision of Company Law. Formally establish the legal status of non-financial enterprises to borrow and improve other relevant systems.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91;D922.28
本文编号：2324061
[Abstract]:With the rapid development of modern enterprises and the increasingly fierce competitive environment, to survive and develop in the domestic and international markets, the most important thing is to solve the problem of source of funds, especially for small and medium-sized enterprises. The difficulty of financing has become the most important problem in its development stage, and they urgently need more direct and effective means of financing. With the accumulated surplus of private capital in China, the way to obtain indirect financing from financial institutions has been unable to meet the financing needs of enterprises and the flow of social surplus funds. Whether inter-firm lending should be legalized has become a widely discussed issue in the society. At present, our country adopts the prohibition attitude to the non-financial enterprise borrowing, but the ambiguous expression in the current legislation makes the negation of the inter-firm lending lack the most powerful basis; The courts at all levels are gradually aware of the defects and limitations of the total prohibition of inter-firm lending, so more and more in judicial practice there is a disguised default effect of inter-firm lending. Domestic concept changes and attitude softening has become the inevitable choice to adapt to the development of the market. In developed countries and regions, the behavior of non-financial enterprises is affirmed in different ways, so it is the trend of the times to allow inter-firm lending. Well, in our country, whether there is a theoretical basis for allowing loans between non-financial enterprises, what kind of risks will be caused after this behavior is legalized, and how to draw lessons from the advanced experience of foreign countries to construct a lending system between non-financial enterprises that is suitable for the national conditions of our country? Are the focus of this study. In addition to the introduction and conclusion, this article is divided into four parts. The first part gives an overview of the legal definition of lending behavior among non-financial enterprises, and analyzes the existing representative lending forms in combination with the current practice, in order to clarify the current situation of the validity of inter-firm lending in China. The second part analyzes the rationality of legalization of lending among non-financial enterprises, and discusses the positive benefits and negative effects of legalization. From the point of view that legalization outweighs the disadvantages, it concludes that it is reasonable to liberalize the behavior of lending among non-financial enterprises. The third part analyzes the feasibility of legalizing lending among non-financial enterprises. From the current legislative and judicial attitudes, the drafting of the "lender regulations" and the rise of micro-credit companies, it is demonstrated that the domestic environmental soil of legalization has gradually formed. Then it analyzes and draws lessons from the NDTL system of the United States, Hong Kong "money lenders regulations", P2P lending mode, and puts forward the legalization expectation to the non-financial enterprises in our country. The fourth part mainly discusses the legislative design and system perfection, puts forward the preliminary system design of the Enterprise loan Law from three aspects: the main body of supervision, the principle of supervision and the content of supervision, and adopts the revision of Company Law. Formally establish the legal status of non-financial enterprises to borrow and improve other relevant systems.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.291.91;D922.28
【参考文献】
相关期刊论文 前1条
1 李志刚;;经济法上的两权对抗及其消解——以国家对民间融资的法律管制为视角[J];法学;2006年01期
相关硕士学位论文 前1条
1 于野;非金融企业间借贷行为规制及立法研究[D];浙江大学;2011年
本文编号：2324061
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