论我国民间借货利率法律规制的完善

发布时间：2018-08-06 11:18

【摘要】：民间借贷利率时刻反映着民间借贷供求关系,为避免经济动荡国内外立法者都对民间借贷利率进行规制。同样,我国为抑制90年代初的“金融三乱”,确立了“四倍红线”民间借贷利率规制1,其标志着政府对民间金融市场的监管,本质上属于公权对于私权的一种干预,该立法措施对于当年的金融秩序、金融体系稳定起到了一定积极作用。不可否认,民间借贷作为一种简单便捷的融资方式在解决个人、中小企业资金需要方面发挥了非常便利的作用。遗憾的是,随着我国经济的迅猛发展,四倍利率法律规制体系逐渐显现出诸多缺陷,其在立法层面与司法层面皆有弊端,表明其一刀切制度已经不能够适应当今市场经济。因此,如何完善我国民间借贷利率规制、如何制定出合理的利率标准、怎样加强对民间借贷利率的有效监管等问题成为我国民间借贷立法亟需解决的重要问题,并且我国关于民间借贷利率的法律解读还存在诸多争议与分歧需要厘清。所以笔者认为该选题具有较强的实践意义与理论意义,其能够引导和规范民间借贷行为,并减少借贷纠纷案件的发生,无论在立法层面还是司法实践中对该选题作进一步深入研究是十分有必要的。本文除引言和结论外,共分为四个部分对文章展开论述。第一部分,民间借贷利率规制的基本理论与现状。首先,民间借贷内涵界定在学界争议较大,且常常与“地下金融”相混淆。本文对民间借贷的内涵界定主要从广义说和狭义说两种主流观点进行分析。在界定民间借贷基本概念基础上,着重深入分析民间借贷利率的基本概念和主要特征,研究得出利率是没有统一的标准,其受到借贷期限、供求关系、借贷利率、资金用途、借贷对象的影响。此外,从我国立法角度出发,对现行利率规制法律规制予以分析、探究,虽然我国已经对借贷利率作出一定程度的规制,但该立法仍散见于不同部门法的不同条文,其制定主体不同,效力位阶也不同,缺乏统一的专门立法,逐渐暴露出诸多弊端。第二部分,现行民间借贷利率规制的弊端及原因分析。依据自由、公平、效率、秩序基本价值,对我国现行民间借贷利率规制的弊端作出法理上的考量。其次,因现行立法的松散性,在司法实践中,对利率立法解读的分歧、被告到庭难、审查证据难、事实认定难等问题都严重阻碍民间借贷合同纠纷的有效解决。笔者分析认为其产生诸多弊端的原因为法律规范不统一、法律的严重滞后性、法律条文之间的规定相互冲突。由此可见,已经严重与社会经济生活不适应的现行法律法规是立法者亟需完善的重点,所以施行时间如此之长的借贷利率法律法规也应当退出法律的历史舞台。第三部分,域外民间借贷利率立法的比较法考察。纵观各国对民间借贷利率的立法措施可以大致划分为三种典型立法模式:事前确立利率上限标准、事后发挥法官自由裁量权去甄别借贷性质以及事前公布浮动利率上限标准并加以事后矫正机制。在充分分析以上各种立法措施优势及劣势后,笔者认为通过专门的立法调整民间借贷活动;通过立法明确民间借贷利率的上限;政府为主积极引导,民、刑结合有效规制;在司法上通过主客观双重标准综合认定高利贷行为等立法启示对我国现行立法具有重大借鉴意义。第四部分,完善我国民间借贷利率法律规制的建议。通过对民间借贷利率现行立法所面临的困境分析后,笔者结合我国司法制度特点从立法、司法、执法角度中提出完善我国民间借贷法律规制的三点建议:一,立法上建立系统的利率上限分类制度。由于我国各地区经济发展不平衡,不同民间借贷行为法律关系较为复杂,因此,我国应该采取民、刑分流的模式在立法层面对民间借贷利率进行规范;二,司法中发挥法官能动性保护当事人合法权益。民间借贷案件自身的复杂性要求法官深入而全面地把握案件的各项事实以及对民间借贷利率全部法律法规有着清晰的认识因此在实践中法官应灵活变通审查内容,在职权范围内扩大审查范围,彰显对双方公平正义的原则;三,执法上建立民间借贷利率的政府指导机制。在执法层面,需要政府发挥其对公民权利的保护作用甚至积极实现公民的合法利益诉求,如果政府不建立适当的民间借贷指导机制进行合理干预,则其金融问题的背后接踵而来的就是更为严重的社会问题。
[Abstract]:The interest rate of private lending reflects the supply and demand relationship of private lending at all times. In order to avoid the economic turbulence, the domestic and foreign legislators are all regulating the interest rate of private lending. In order to suppress the "financial turmoil" in the early 90s, China has established a "four times red line" private lending rate regulation 1, which marks the government's supervision of the private financial market. It is a kind of interference of public power to private rights. The legislative measures have played a positive role in the financial order and the stability of the financial system. It is undeniable that as a simple and convenient way of financing, private lending plays a very convenient role in solving individual and financing needs of small and medium enterprises. Unfortunately, along with our country With the rapid development of economy, the legal regulation system of four times interest rate has gradually shown a lot of defects. It has disadvantages in both the legislative and judicial levels. It shows that the one size fits all system has not been able to adapt to the current market economy. Therefore, how to improve the regulation of the interest rate of private lending in China, such as how to make a reasonable interest rate standard, and how to strengthen the people's private interest rate. The effective supervision of the loan interest rate has become an important problem to be solved in the private lending legislation in China, and there are still many disputes and differences in the legal interpretation of the interest rate of private lending in our country. So I think the topic has strong practical and theoretical significance. In order to reduce the occurrence of the case of the loan dispute, it is necessary to further study the topic in the legislative and judicial practice. In addition to the introduction and conclusion, this article is divided into four parts to discuss the article. The first part, the basic theory and present situation of the folk lending rate regulation. First, the connotation of private lending. The definition is very controversial in the academic field and often confused with the "underground finance". This paper analyzes the connotation of private lending from two main points of view in the broad sense and the narrow sense. On the basis of defining the basic concepts of private lending, the basic concept and main characteristics of the interest rate of private lending are deeply analyzed, and the interest rate is studied. There is a unified standard, which is influenced by the term of borrowing, supply and demand, the interest rate of lending, the use of funds, and the effect of the borrower. In addition, the legal regulation of current interest rate regulation is analyzed from the angle of legislation in our country. Although our country has made a certain regulation on the interest rate of lending, the legislation is still scattered in different department laws. In the second part, the shortcomings and reasons of the current regulation of the interest rate of private lending are analyzed. According to the basic value of freedom, fairness, efficiency and order, the paper makes a legal consideration of the disadvantages of the current regulation of the interest rate of private lending in our country. Because of the looseness of the current legislation, in the judicial practice, the differences in the interpretation of interest rate legislation, the difficulty of the defendant to the court, the difficulty in examining the evidence and the difficulty in identifying the facts are all seriously impeding the effective settlement of the disputes in the civil loan contract. The author thinks that the reasons for its disadvantages are the legal norm is not unified, the law is seriously lagging, the law is seriously lagging, and the law is seriously lagging. The provisions of the provisions are conflicting with each other. Thus, the existing laws and regulations which have been seriously ill adapted to the social and economic life are the key points for the legislator to be perfected. So the laws and regulations of such long borrowing and lending rates should also be withdrawn from the historical stage of the law. The third part, the comparison of the legislation of the interest rate of private lending abroad The legislative measures for the interest rate of private lending in various countries can be roughly divided into three typical legislative modes: setting up the upper limit of interest rate before the incident, giving full play to the discretion of the judge to distinguish the nature of borrowing and lending, and announding the upper limit of floating interest rate before the incident and correcting the mechanism afterwards. After the disadvantage, the author thinks that the private lending activities should be adjusted through special legislation; the upper limit of the interest rate of private lending is clearly defined by legislation; the government is the main guide, the people and the punishment combined effective regulation, and the legislative enlightenment of the usury through the subjective and objective dual standards in the judicature is of great reference to the current legislation of our country. Fourth Part of the proposal to improve the legal regulation of the interest rate of private lending in our country. After analyzing the difficulties faced by the current legislation of the private lending rate, the author puts forward three suggestions on perfecting the legal regulation of the private lending in our country from the angle of legislation, judicature and law enforcement in terms of the characteristics of our country's judicial system: first, to set up a systematic interest rate upper limit classification in legislation. System. Because of the unbalanced economic development in all regions of our country, the legal relationship of different folk lending behavior is more complicated. Therefore, our country should adopt the mode of civil and criminal distributary to standardize the interest rate of private lending in the legislative level; two, the judiciary plays the role of the judge to protect the legitimate rights and interests of the parties. The complexity of the private lending case itself is required. The judge has a thorough and comprehensive grasp of the facts of the case and a clear understanding of all laws and regulations on the interest rate of private lending. Therefore, in practice, the law officer should flexibly adapt the censorship, expand the scope of examination within the scope of authority, and highlight the principle of fairness and justice between the two parties; three, a government guidance machine for establishing the interest rate of private lending in law enforcement. At the level of law enforcement, the government needs the government to give full play to its protection of civil rights and even actively realize the legitimate interests of citizens. If the government does not establish appropriate private lending guidance mechanism for reasonable intervention, the following financial problems are followed by more severe social problems.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

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