商业银行委托贷款业务法律问题研究
发布时间：2018-12-06 19:04
【摘要】：近几年,商业银行委托贷款业务迅速发展,为社会闲置资金的有效运用提供了良好的途径。商业银行作为受托方不承担任何风险和责任,商业银行应按照委托方的要求发放贷款资金,监督贷款资金的使用情况并协助收回,还可按约定收取一定比例的手续费,全部贷款风险由提供贷款资金的委托方来承担。但是由于我国有关委托贷款业务的法律法规的不完善,导致在司法实践中出现了大量的问题,不利于商业银行委托贷款业务的健康有序发展。 本文内容共分为三部分： 本文第一部分对商业银行委托贷款业务进行了基本界定,介绍了委托贷款业务的概念以及分类,通过与自营贷款、信托贷款相关概念的比较,得出委托贷款业务的法律特征,在此基础上着重分析了委托贷款业务的法律性质是一种间接代理关系,并进一步理清了委托贷款业务中当事人的权利与义务,明确了商业银行发展委托贷款业务的意义。 本文第二部分阐述了我国商业银行委托贷款业务的立法现状以及存在的问题。本部分首先列举了商业银行委托贷款业务的相关法律规定,包括《合同法》、《商业银行法》、司法解释以及部门规章中的相关法律规定,在此基础上从五个方面重点分析了委托贷款业务中存在的法律问题,分别是借款人逾期不归还本息的责任分配不明确、委托贷款业务担保规定有欠缺、集合委托贷款业务的法律规定不完善、商业银行内控机制的不健全和委托贷款监管法规的不完善。 本文第三部分结合我国商业银行委托贷款业务实践中存在的法律问题,针对性地提出相应的对策建议。具体建议如下：针对借款人逾期不归还本息的责任分配不明确问题,笔者认为可以从受托人主张债权和不主张债权两种情况下认定责任主体与责任范围；关于委托贷款企业与担保人签订的合同效力问题可从三方约定和没有约定两种情况下确定担保合同的效力,针对担保合同中受托商业银行不积极主张权利的问题,委托人可以行使介入权保障自己的合法权益；从严格设定借款人条件、规范业务操作和建立产品流动机制三方面来完善集合委托贷款业务；通过加强合规性审查、禁止垫付资金以及完善内部责任追究制三方面健全商业银行委托贷款业务内部控制；从统一监管标准、健全监管手段和规范信息披露三方面来完善商业银行委托贷款业务外部监管。
[Abstract]:In recent years, the entrusted loan business of commercial banks has developed rapidly, which provides a good way for the effective use of social idle funds. The commercial bank, as the trustee, shall not bear any risks and responsibilities. The commercial bank shall issue the loan funds in accordance with the requirements of the entrusting party, supervise the use of the loan funds and assist in the recovery of the loan funds, and may also charge a certain proportion of the handling fees as agreed. All loan risks are borne by the principal who provides the loan funds. However, due to the imperfect laws and regulations on entrusted loan business in our country, there are a lot of problems in judicial practice, which is not conducive to the healthy and orderly development of entrusted loan business of commercial banks. The content of this paper is divided into three parts: the first part of this paper gives a basic definition of the entrusted loan business of commercial banks, introduces the concept and classification of entrusted loan business, and compares the related concepts with self-financing and trust loan. On the basis of the analysis of the legal nature of the entrusted loan business is an indirect agency relationship, the author further clarifies the rights and obligations of the parties in the entrusted loan business. The significance of the development of entrusted loan business in commercial banks is clarified. The second part of this paper expounds the legislative status and existing problems of entrustment loan business of commercial banks in China. This part first lists the relevant legal provisions of the entrusted loan business of commercial banks, including the contract Law, the Commercial Bank Law, the judicial interpretation and the relevant legal provisions in the departmental rules and regulations. On this basis, the author analyzes the legal problems existing in the entrusted loan business from five aspects. They are the unclear distribution of the borrower's responsibility for failing to return principal and interest, and the lack of guarantee provisions in the entrusted loan business. The laws and regulations of collective entrustment loan business are not perfect, the internal control mechanism of commercial banks is not perfect, and the supervision and regulation of entrusted loans are not perfect. The third part of this paper combines the legal problems in the practice of entrustment loan business of commercial banks in our country, and puts forward corresponding countermeasures and suggestions. The specific suggestions are as follows: in view of the unclear distribution of the borrower's responsibility for failing to return principal and interest in due time, the author thinks that the subject and scope of liability can be determined from the two situations of the trustee's claim of creditor's rights and non-claim of creditor's rights; With regard to the validity of the contract signed between the entrusted loan enterprise and the guarantor, the validity of the guarantee contract can be determined under the circumstances of the tripartite agreement and the absence of an agreement, and the problem of the fiduciary commercial bank not actively asserting its rights in the security contract, The principal may exercise the right of intervention to protect his legitimate rights and interests; From strict setting the borrower's condition, standardizing the business operation and establishing the product flow mechanism to perfect the collective entrustment loan business; Through strengthening compliance examination, prohibiting advance payment of funds and perfecting internal liability investigation system, the internal control of entrusted loan business of commercial banks should be improved. The external supervision of entrusted loan business of commercial banks is improved from three aspects: unifying supervision standard, perfecting supervision means and standardizing information disclosure.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.28;F832.4
本文编号：2366509
[Abstract]:In recent years, the entrusted loan business of commercial banks has developed rapidly, which provides a good way for the effective use of social idle funds. The commercial bank, as the trustee, shall not bear any risks and responsibilities. The commercial bank shall issue the loan funds in accordance with the requirements of the entrusting party, supervise the use of the loan funds and assist in the recovery of the loan funds, and may also charge a certain proportion of the handling fees as agreed. All loan risks are borne by the principal who provides the loan funds. However, due to the imperfect laws and regulations on entrusted loan business in our country, there are a lot of problems in judicial practice, which is not conducive to the healthy and orderly development of entrusted loan business of commercial banks. The content of this paper is divided into three parts: the first part of this paper gives a basic definition of the entrusted loan business of commercial banks, introduces the concept and classification of entrusted loan business, and compares the related concepts with self-financing and trust loan. On the basis of the analysis of the legal nature of the entrusted loan business is an indirect agency relationship, the author further clarifies the rights and obligations of the parties in the entrusted loan business. The significance of the development of entrusted loan business in commercial banks is clarified. The second part of this paper expounds the legislative status and existing problems of entrustment loan business of commercial banks in China. This part first lists the relevant legal provisions of the entrusted loan business of commercial banks, including the contract Law, the Commercial Bank Law, the judicial interpretation and the relevant legal provisions in the departmental rules and regulations. On this basis, the author analyzes the legal problems existing in the entrusted loan business from five aspects. They are the unclear distribution of the borrower's responsibility for failing to return principal and interest, and the lack of guarantee provisions in the entrusted loan business. The laws and regulations of collective entrustment loan business are not perfect, the internal control mechanism of commercial banks is not perfect, and the supervision and regulation of entrusted loans are not perfect. The third part of this paper combines the legal problems in the practice of entrustment loan business of commercial banks in our country, and puts forward corresponding countermeasures and suggestions. The specific suggestions are as follows: in view of the unclear distribution of the borrower's responsibility for failing to return principal and interest in due time, the author thinks that the subject and scope of liability can be determined from the two situations of the trustee's claim of creditor's rights and non-claim of creditor's rights; With regard to the validity of the contract signed between the entrusted loan enterprise and the guarantor, the validity of the guarantee contract can be determined under the circumstances of the tripartite agreement and the absence of an agreement, and the problem of the fiduciary commercial bank not actively asserting its rights in the security contract, The principal may exercise the right of intervention to protect his legitimate rights and interests; From strict setting the borrower's condition, standardizing the business operation and establishing the product flow mechanism to perfect the collective entrustment loan business; Through strengthening compliance examination, prohibiting advance payment of funds and perfecting internal liability investigation system, the internal control of entrusted loan business of commercial banks should be improved. The external supervision of entrusted loan business of commercial banks is improved from three aspects: unifying supervision standard, perfecting supervision means and standardizing information disclosure.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.28;F832.4
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