合会合同制度研究
发布时间：2019-07-09 13:51
【摘要】：合会是流行于我国民间的融资暨储蓄组织,它由发起人召集亲朋好友定期参加聚会,从成员间筹措资金,通过一定的方式轮流交与每位成员使用完毕。合会依赖于地缘和亲缘,凭借成员间的信用来维持合会的运行,其方式具有灵活性,深受广大民众的欢迎。现阶段,我国的合会是否合法,其法律属性归属,尚存在争议,合会所面临的法律风险和困境也有待分析和解决。本文第一部分引文,开篇简要论述合会研究的意义及本文的研究方向。第二部分通过介绍合会的起源和运作机制,展示了合会是作为一种民间融资方式的内在本质,归纳合会的特征即存在的正面作用和负面缺点,列举不同情形下的合会类型。第三部分评析合会的法律关系,首先是比对了合会与非法集资的差别,论证合会的法律关系是合法的民事平等主体之间的合同关系,在大陆合同法体系中应属于无名合同。进一步论证合会合同成立的主客体要件,评述要件缺失情形对合会合同的效力影响。最后简明概括一般合会中会首与会员的基本权利义务。第四部分,合会法律关系存续面临主要的法律风险在于违约带来的倒会风险,通过合会倒会情形的实证分析,归纳合会合同履行过程风险产生的内部原因系会首的权利、义务匹配失当,会员的权利保障不足、信息不对称等,外部成因系司法、监管理念,造成合会纠纷缺乏司法途径解决,缺失合会失信惩戒机制。为解决合会的风险,从合会法律关系内部中应当重点针对会首的地位和权利义务、信息披露机制进行合理的设计,试论证会员利用我国债权保全制度中的抗辩权和撤销权来对抗合会中的违约等不法侵害利益行为。本文第五部分,承接前文,针对合会合同的风险,外部的一大原因乃司法救济不力,通过当前我国合会合同的相关案例评析,指出我国在此领域司法裁判存在法律关系认识错误,司法裁判民刑不分、尺度混乱的问题,提出近期未能立法的情况下,在目前现状下通过引入习惯法渊源和无名合同的法律适用的方式,将合会合同民事纠纷纳入到我国现有的民商事审判法律体系中,积累审判经验,从而正确引导合会法律关系的构建,为立法提供实践借鉴,促进合会的健康发展,服务我国经济。本文第六部分是结语,简单总结了本文的观点。
[Abstract]:The club is a financing and savings organization popular in our country. It is used by the sponsors to gather their relatives and friends regularly, raise funds from among the members, and take turns to each member in a certain way. The club relies on geography and kinship, and relies on the credit of its members to maintain the operation of the club in a flexible manner and is welcomed by the general public. At present, there is still a dispute over whether the consortia in our country are legal or not, and the legal risks and dilemmas faced by the consortia still need to be analyzed and solved. The first part of this paper citation, the first part briefly discusses the significance of community research and the research direction of this paper. The second part introduces the origin and operation mechanism of the union, shows the inherent essence of the union as a kind of private financing mode, sums up the characteristics of the union, that is, the positive effects and negative shortcomings, and enumerates the types of the union under different circumstances. The third part analyzes the legal relationship of the association, first of all, it compares the difference between the union and the illegal fund raising, and demonstrates that the legal relationship of the union is the contractual relationship between the legitimate civil equal subjects, which should belong to the nameless contract in the mainland contract law system. This paper further demonstrates the subject and object elements of the establishment of the union contract, and comments on the influence of the absence of the elements on the effectiveness of the union contract. Finally, the basic rights and obligations of the head and members of the general club are briefly summarized. In the fourth part, the main legal risk of the survival of the union legal relationship lies in the reverse risk caused by breach of contract. Through the empirical analysis of the situation of the union meeting, it is concluded that the internal causes of the risk in the process of the performance of the union contract are the rights of the association, the improper matching of obligations, the insufficient protection of the rights of the members, the asymmetry of information, etc., the external causes are the administration of justice and the concept of supervision, resulting in the lack of judicial means to resolve the disputes. There is a lack of a disciplinary mechanism for breach of trust. In order to solve the risk of the association, we should focus on the status and rights and obligations of the head of the association in the legal relationship of the association, and carry out a reasonable design of the information disclosure mechanism, and try to demonstrate that the members use the right of defense and cancellation in the system of the preservation of creditor's rights to counter the illegal infringement of interests such as breach of contract in the association. The fifth part of this paper, in view of the risk of the union contract, one of the main external reasons is the lack of judicial relief. Through the current analysis of the relevant cases of the joint association contract in our country, it is pointed out that there are some problems in the judicial adjudication in this field, such as the wrong understanding of the legal relationship, the lack of distinction between the judicial adjudication and the civil punishment, and the confusion of the scale, and puts forward the situation that the legislation has not been legislated in the near future. Under the present situation, by introducing the origin of customary law and the legal application of nameless contract, the civil disputes of union contract are brought into the existing legal system of civil and commercial trial in our country, and the trial experience is accumulated, so as to correctly guide the construction of the legal relationship of the association, provide practical reference for legislation, promote the healthy development of the association and serve the economy of our country. The sixth part of this paper is the conclusion, which briefly summarizes the views of this paper.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
本文编号：2512188
[Abstract]:The club is a financing and savings organization popular in our country. It is used by the sponsors to gather their relatives and friends regularly, raise funds from among the members, and take turns to each member in a certain way. The club relies on geography and kinship, and relies on the credit of its members to maintain the operation of the club in a flexible manner and is welcomed by the general public. At present, there is still a dispute over whether the consortia in our country are legal or not, and the legal risks and dilemmas faced by the consortia still need to be analyzed and solved. The first part of this paper citation, the first part briefly discusses the significance of community research and the research direction of this paper. The second part introduces the origin and operation mechanism of the union, shows the inherent essence of the union as a kind of private financing mode, sums up the characteristics of the union, that is, the positive effects and negative shortcomings, and enumerates the types of the union under different circumstances. The third part analyzes the legal relationship of the association, first of all, it compares the difference between the union and the illegal fund raising, and demonstrates that the legal relationship of the union is the contractual relationship between the legitimate civil equal subjects, which should belong to the nameless contract in the mainland contract law system. This paper further demonstrates the subject and object elements of the establishment of the union contract, and comments on the influence of the absence of the elements on the effectiveness of the union contract. Finally, the basic rights and obligations of the head and members of the general club are briefly summarized. In the fourth part, the main legal risk of the survival of the union legal relationship lies in the reverse risk caused by breach of contract. Through the empirical analysis of the situation of the union meeting, it is concluded that the internal causes of the risk in the process of the performance of the union contract are the rights of the association, the improper matching of obligations, the insufficient protection of the rights of the members, the asymmetry of information, etc., the external causes are the administration of justice and the concept of supervision, resulting in the lack of judicial means to resolve the disputes. There is a lack of a disciplinary mechanism for breach of trust. In order to solve the risk of the association, we should focus on the status and rights and obligations of the head of the association in the legal relationship of the association, and carry out a reasonable design of the information disclosure mechanism, and try to demonstrate that the members use the right of defense and cancellation in the system of the preservation of creditor's rights to counter the illegal infringement of interests such as breach of contract in the association. The fifth part of this paper, in view of the risk of the union contract, one of the main external reasons is the lack of judicial relief. Through the current analysis of the relevant cases of the joint association contract in our country, it is pointed out that there are some problems in the judicial adjudication in this field, such as the wrong understanding of the legal relationship, the lack of distinction between the judicial adjudication and the civil punishment, and the confusion of the scale, and puts forward the situation that the legislation has not been legislated in the near future. Under the present situation, by introducing the origin of customary law and the legal application of nameless contract, the civil disputes of union contract are brought into the existing legal system of civil and commercial trial in our country, and the trial experience is accumulated, so as to correctly guide the construction of the legal relationship of the association, provide practical reference for legislation, promote the healthy development of the association and serve the economy of our country. The sixth part of this paper is the conclusion, which briefly summarizes the views of this paper.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6
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