我国中小企业民间借贷风险防范法律问题研究

发布时间：2018-08-21 10:57

【摘要】：中小企业是指在各个企业类型中其员工人数、企业营业额及企业资产总额等方面都低于同类型大型企业的其他所有企业,这类企业往往存在资金来源单一,出资人组成较为简单等特征,这些特征导致中小企业的借贷很难通过银行审批程序。因此,大多中小企业在需要融资时选择民间借贷,选择民间借贷必然面临诸多民间借贷的风险,如何解决中小企业在民间借贷过程中面临的民间借贷风险防范的法律问题便是本文着重探讨的问题。首先,文章对中小企业民间借贷做了概述,在这里主要是对中小企业的概念做了界定,这样才能明确研究的对象与范围。并通过对中小企业民间借贷的目前的现状与其形成原因两方面从宏观上对中小企业民间借贷进行介绍。其次,讨论了我国目前中小企业民间借贷所存在的法律风险。这些风险按其所涉及法律的性质可分为涉嫌承担合同违约与连带责任的民事法律责任的风险、涉嫌承担行政处分和行政处罚的行政法律责任的风险和涉嫌承担非法集资与高利贷的刑事法律责任的风险等三方面法律风险的内容。再次,根据出现的上述法律风险,分析其出现的原因。得出引起法律风险存在的主要原因就在于中小企业民间借贷当事人的法律意识淡薄易在民间借贷过程中出现偏差、中小企业民间借贷立法不完善缺乏相关中小企业民间借贷的专门法律对其进行监督管理及中小企业民间借贷监管法律机制不健全等这三个方面。最后,针对上述法律风险及其存在的原因,提出我国中小企业民间借贷风险防范的针对性法律建议,具体包括:增强中小企业民间借贷双方的法律意识并规范其借贷行为,建立社会的诚信制度并完善中小企业民间借贷的相关立法以及明确中小企业民间借贷的监管主体并且健全中小企业民间借贷监管机制等,希望上述建议能够确实有效的解决我国中小企业民间借贷中存在的法律风险问题。
[Abstract]:Small and medium-sized enterprises (SMEs) refer to all other enterprises in which the number of employees, turnover and total assets of enterprises are lower than those of large enterprises of the same type, and such enterprises often have a single source of capital. The simple composition of investors makes it difficult for SMEs to pass the bank approval process. Therefore, most small and medium-sized enterprises choose private lending when they need to raise funds, and the choice of private lending is bound to face many risks of private borrowing. How to solve the legal problems faced by SMEs in the process of private lending is the focus of this paper. First of all, the article summarizes the private lending of SMEs, mainly defines the concept of SMEs, so as to clarify the object and scope of the study. And through the small and medium-sized enterprise folk loan present situation and its formation reason two aspects carries on the macroscopic introduction to the small and medium-sized enterprise folk loan. Secondly, it discusses the legal risk of private lending to small and medium enterprises in our country. According to the nature of the law involved, these risks can be divided into the risks of civil liability for breach of contract and joint and several liability, The contents of the three aspects of the legal risks are the risk of administrative legal liability of administrative punishment and the risk of criminal liability of illegal fund-raising and usury. Thirdly, according to the above-mentioned legal risks, the reasons for their appearance are analyzed. It is concluded that the main reason for the existence of legal risks lies in the weak legal awareness of the private lending parties in small and medium-sized enterprises, which is prone to deviate in the process of private lending. The small and medium-sized enterprises' private loan legislation is imperfect and lacks the special law to supervise and manage the small and medium-sized enterprises' private loan and the small and medium-sized enterprises' private loan supervision legal mechanism is not perfect and so on. Finally, in view of the above legal risks and the reasons for their existence, this paper puts forward some specific legal suggestions for the prevention of the private lending risks of small and medium-sized enterprises in China, including: strengthening the legal awareness of both sides of the private lending and lending of small and medium-sized enterprises and standardizing their borrowing behavior. To establish social integrity system and improve the relevant legislation of private lending for small and medium-sized enterprises, as well as to clarify the regulatory body of private lending in small and medium-sized enterprises and to improve the supervision mechanism of private lending in small and medium-sized enterprises, and so on. I hope the above suggestions can effectively solve the legal risks in the private lending of small and medium enterprises in China.
【学位授予单位】：河南师范大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.28

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