我国P2P网贷出借人财产权益保障研究

发布时间：2018-04-27 14:10

本文选题：出借人 + 财产权益　；参考：《湘潭大学》2017年硕士论文

【摘要】：P2P网贷是互联网金融的一员,是民间借贷的重要渠道之一,其具有突破地域局限、门槛松、放贷快、利率低(较传统民间借贷)等特点,弥补传统银行业金融机构融资的不足,其在民间融资中大受欢迎。但P2P网贷出借人财产权益损害的现象屡见不鲜,大大挫伤出借人在P2P网贷平台投资的积极性,阻碍了P2P网贷平台的发展。笔者力求分析P2P网贷出借人财产权益损害的成因并提出针对性的法律制度建议。《民间借贷司法解释》允许P2P网贷平台在特定情形下为出借人债权提供担保,借款人违约的风险从出借人转嫁给P2P网贷平台,有利于出借人出借资金的积极性和权益保障,但P2P网贷监管政策却否定P2P网贷平台可为出借人债权担保,导致P2P网贷平台审核借款人信用状况的随意性。且上述规范性文件之间的矛盾亦导致针对网贷平台担保的行政处罚和民事判决的矛盾。笔者认为应当修改P2P网贷监管政策与《民间借贷司法解释》一致,允许P2P网贷平台为出借人债权提供担保,在修改监管政策之前,可通过行政判决,撤销对P2P网贷平台担保的行政处罚,使得有关禁止P2P网贷平台为出借人债权担保的监管政策在事实上失效。此外,现有的P2P网贷平台依据《公司法》等法律成立,没有最低注册资本和注册资本实缴制的限制,导致P2P网贷平台的担保能力有限,不利于出借人担保债权的实现。笔者认为应当在《网贷暂行办法》中规定P2P网贷平台的最低注册资本并规定注册资本实缴制。P2P网贷平台亦可引入担保公司担保出借人债权,但担保公司往往因利益驱使违规担保,若出现大规模的借款违约,担保公司可能进入破产程序,出借人作为一般债权人可能仅按照债权的比例受偿。笔者认为,P2P网贷平台应谨慎审查其引入的担保公司的担保余额,否则应承担与其过错程度相当的担保补充责任。存管制度可实现网贷平台资金与客户资金的隔离,有效防止P2P网贷平台集资诈骗罪,但由于存管制度网络架构成本高,不施行存管制度的违法成本又低,导致P2P网贷平台怠于推行存管制度。笔者认为应当在《网贷暂行办法》中增加“吊销执照”这一行政处罚措施,使得不施行存管制度的P2P网贷平台消灭,有效防范集资诈骗罪。P2P网贷平台在网上运营,出借人地域分布广,若平台涉嫌集资诈骗罪,被害人人数往往众多,涉案金额也大,但刑法并未对P2P网贷平台集资诈骗罪进行特殊规定以体现其社会危害性大的特殊性。笔者认为应当在《非法集资司法解释》第五条中增设一款,对P2P网贷平台涉嫌集资诈骗罪的犯罪数额标准比照其他类型的集资诈骗罪的犯罪数额标准减半,加大P2P网贷平台集资诈骗罪的打击力度。
[Abstract]:P2P network loan is a member of Internet finance and one of the important channels of private lending. It has the characteristics of breaking through regional limitations, loose threshold, fast lending, low interest rate (compared with traditional private lending), and so on, which makes up for the shortage of traditional banking financial institutions' financing. It is popular in private financing. However, the phenomenon of property rights and interests damage of P2P network lenders is common, which greatly dampens the enthusiasm of lenders to invest in P2P network lending platform, and hinders the development of P2P network loan platform. The author tries to analyze the causes of the damage to the property rights and interests of the loan lenders in P2P networks and puts forward some specific legal system suggestions. The Judicial interpretation of Folk Lending allows P2P network lending platforms to provide security for lenders' claims under certain circumstances. The risk of borrower default is transferred from the lender to the P2P network loan platform, which is conducive to the enthusiasm and protection of the lender's rights and interests, but the P2P network loan supervision policy denies that the P2P network loan platform can guarantee the creditor's rights. Lead to P2P network loan platform audit of the borrower's credit status at will. The contradiction between the above-mentioned normative documents also leads to the contradiction between the administrative penalty and the civil judgment for the net loan platform guarantee. The author thinks that the supervision policy of P2P network loan should be revised in accordance with the judicial interpretation of folk lending, allowing the P2P network loan platform to provide guarantee for the creditor's rights. Before the modification of the supervision policy, the author can pass an administrative judgment. The cancellation of the administrative punishment on the guarantee of P2P network loan platform makes the supervision policy of prohibiting P2P network loan platform from being a creditor's creditor's right guarantee invalidate in fact. In addition, the existing P2P network loan platform is established according to the law of Company Law, and there is no restriction of minimum registered capital and registered capital payment system, which leads to the limited guarantee ability of P2P network loan platform, which is not conducive to the realization of the creditor's guarantee rights. The author thinks that the minimum registered capital of P2P net loan platform should be stipulated in the interim measures of net loan, and that the registered capital payment system. P2P net loan platform can also introduce guarantee company guarantee lender's creditor's rights. However, the guarantee company often because of the interests of illegal guarantee, if there is a large-scale loan default, the guarantee company may enter into bankruptcy proceedings, the lender as a general creditor may only be paid according to the proportion of the debt. The author thinks that the P2P network loan platform should carefully examine the guarantee balance of the guarantee company it introduces, otherwise, it should bear the supplementary responsibility of guarantee which is equivalent to its fault degree. The storage and management system can realize the separation between the network loan platform funds and the customer funds, and effectively prevent the P2P network loan platform from the crime of financing fraud, but because of the high cost of the network structure of the storage and management system, the illegal cost of not implementing the deposit management system is also low. Lead to P2P network loan platform in the implementation of deposit management system. The author thinks that we should add the administrative penalty measure of "revocation of license" in the interim measures of net loan, so that the P2P network loan platform that does not carry out the storage and management system will be eliminated, and the P2P network loan platform should be effectively prevented from running on the network. Lenders are widely distributed in the region, if the platform is suspected of fund-raising fraud, the number of victims is often large, involved in a large amount of money, but the criminal law does not have a special provision for P2P network lending platform financing fraud to reflect its social harm of the particularity. In my opinion, we should add a paragraph in Article 5 of the "illegal financing Judicial interpretation" to halve the amount of criminal amount of the peer-to-peer network loan platform suspected of fund-raising fraud as compared with that of other types of fund-raising fraud. Increase P2P network loan platform to raise funds to fight the crime of fraud.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.282

【参考文献】