民间借贷利率的法律规制的完善

发布时间：2018-04-26 23:18

本文选题：民间借贷 + 利率　；参考：《上海社会科学院》2017年硕士论文

【摘要】：这些年来,国家经济的持续增长进一步激发了民间投资的活力,民间借贷在我国金融信贷领域发挥着愈发重要的作用。民间借贷是正规金融的有益补充,它在很大程度上解决了小微企业筹集资金困难的局面,解决了社会就业问题,促进经济的平稳运行。然而,在我国当前的法律体系中,还没有制定专门性的法律法规对相关问题进行规范和约束,使得民间借贷行为以其存在的隐蔽性、法律地位的不明确性、风险的不可控性,常年游离于正规金融体系之外。在司法实践中,对民间借贷复利、借款利息预先在本金中扣除、借款人自愿支付利息等行为的认定上亦普遍存在疑问,因此,制定专门性的规范用以明确民间借贷的相关问题,尤其是利率问题就显得尤为重要。例如应当在制定符合社会经济的发展规律,具有科学性的利率标准的同时,进一步统一有关民间借贷利息法律疑难问题的裁判标准问题,并针对现实生活中常见的高利贷行为,借鉴国外法规,引入民刑并用的处罚模式等。该选题紧密联系社会实际,具有较强的理论研究价值,在理论和实践中均有深入研究的必要,可以为处理该类型案件提供指导作用。本文的论述除了绪论、引言和结语之外,还分为四个章节对相关问题进行阐述。具体如下:第一部分,主要阐述民间借贷的概念和内涵,明确民间借贷应被界定为是一种不受政府职能部门监管的,与正规金融相对的,借贷人约定期限届满后还本付息的民事法律行为。紧接着对利率规制的意义、取向进行深入分析,为接下来的研究做好铺垫。第二部分,对我国理论和实践的法律规制现状进行分析并指出存在的现实问题。目前,法律法规对借款人自愿支付利息的认定、借款利息预先在本金中扣除的认定、民间借贷复利的计算等问题的规定不明确,不具体,无法直接、有效地引导当事人间的民间借贷行为,需要进一步完善以应对复杂多变的司法环境。第三部分,对境内外国家利率规制问题进行研究,特别是在高利贷问题上,域外的发达国家对这方面的研究和探索相对成熟,通过了解日本、美国、德国等国家先进做法,可以从中吸取经验教训。第四部分,我国迫切需要制定相关的法律法规,完善配套措施,对民间借贷的法律问题进行规范,对高利贷行为进行界定,明确借贷的利率上限等,促进民间借贷的合法化进程,加速其正规化,最后需要统一司法实践中疑难问题的裁判标准问题,实现民间借贷运行机制的法制化。
[Abstract]:In recent years, the sustained growth of national economy has further stimulated the vitality of private investment, and private lending plays an increasingly important role in the field of financial credit in China. Private lending is a useful supplement to formal finance, which to a large extent solves the difficult situation of raising funds for small and micro enterprises, solves the problem of social employment and promotes the smooth operation of the economy. However, in the current legal system of our country, there are no specific laws and regulations to regulate and restrict the relevant issues, which makes the folk lending behavior with its existence of concealment, legal status uncertainty, risk control. Outside the formal financial system all the year round. In judicial practice, there are also general doubts about the identification of the behavior of compound interest on private lending, the deduction of loan interest in advance from the principal amount, the voluntary payment of interest by the borrower, and so on. Therefore, it is necessary to formulate specific norms to clarify the related problems of private lending. In particular, the issue of interest rates is particularly important. For example, while formulating the law of social and economic development and the scientific standard of interest rate, we should further unify the standard of judgment concerning the legal problems of interest on private loans, and aim at the common usury behavior in real life. Draw lessons from foreign laws and regulations, the introduction of civil punishment combined with the punishment model. This topic is closely connected with social practice and has strong theoretical research value. It is necessary to study deeply in theory and practice, which can provide guidance for dealing with this type of cases. In addition to the introduction, introduction and conclusion, the thesis is divided into four chapters. Details are as follows: the first part mainly expounds the concept and connotation of private lending, and clarifies that private lending should be defined as one that is not regulated by the functional departments of the government, as opposed to formal finance. The civil legal act of repayment of principal and interest after the expiration of the time limit agreed upon by the borrower. Then, the significance and orientation of interest rate regulation are analyzed in order to pave the way for the following research. The second part analyzes the current situation of legal regulation in theory and practice in China and points out the existing practical problems. At present, the provisions of the laws and regulations on the determination of the borrower's voluntary payment of interest, the determination of the deduction of the loan interest in advance from the principal amount, the calculation of the compound interest of private loans and so on are unclear, unspecific, and unable to be directly directed. It needs to be further improved to deal with the complex and changeable judicial environment to effectively guide the folk lending behavior between the parties. In the third part, we study the regulation of interest rates in and out of China, especially in the issue of usury. The developed countries abroad are relatively mature in their research and exploration in this respect. Through understanding the advanced practices of Japan, the United States, Germany and other countries, Lessons can be drawn from it. The fourth part, our country urgently needs to make the related laws and regulations, consummates the supporting measures, carries on the standard to the folk loan legal question, to the usury behavior carries on the definition, definite loan interest rate upper limit and so on. Finally, it is necessary to unify the adjudication standard of the difficult problems in the judicial practice and to realize the legalization of the operation mechanism of the folk lending.
【学位授予单位】：上海社会科学院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.28

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