P2P网络借贷平台债权转让模式存废论

发布时间：2019-06-06 07:20

【摘要】：作为一种新的投资方式,P2P网络借贷通过互联网已逐渐为人所熟知。从2007年我国第一家P2P网络借贷平台“拍拍贷”成立到2015年,我国P2P网络信贷之前一直处于法律的“灰色”地带,直到最近《关于促进互联网金融健康发展的指导意见》出台,才明确了P2P网络借贷平台要坚持信息中介地位的宗旨,将该行业的监管权限分配给银监会。然而,这项自我矛盾的安排引起了业界对网络借贷平台定性的争议。债权转让模式是我国P2P借贷行业对传统业务模式的中国化创新,此业务的运营也取得了较好的成效,但同时该模式运作过程因涉及信贷资产证券化和存在非法集资刑事犯罪的风险而颇受争议。本文从上述两个争议点出发,探讨债权转让模式的合法性和法律风险,提出债权转让模式应当废除的观点。本文以债权转让模式的合法性为切入点,除引言和结语部分外,分为五部分:第一部分是债权转让模式的现实实践。本部分主要介绍债权转让模式的现实实践,提出债权转让模式中存在合法性和运营风险两方面的问题,从而引起了债权转让模式的存废争议。第二部分是对债权转让模式的合法性探讨。本部分通过对债权转让模式的实例——宜信平台的唐宁模式的考察,提出对债权转让模式合法性存在平台定性和交易产品性质两方面的疑问,并结合实例分析债权转让模式中四方当事人间的具体法律关系和法律性质,揭示债权转让模式的问题在于,网络借贷平台对放贷人债权的“整理——错配”过程是在进行资产证券化,以及转让的“债权”本质属于证券。第三部分是债权转让模式下存在的风险承担。本部分介绍在债权转让模式下投资者需要防范庞氏骗局,网络平台必须对非法集资重点防范。第四部分是对P2P借贷平台债权转让模式的域外考察。本部分通过对美国的债权转让模式——Lending Club的证券模式的业务运营方法和风险监管的考察,分析中美债权转让模式的差异,提出对我国监管有益的建议。第五部分是债权转让模式走向的建议,即结论部分。本部分在前文论述的基础上,总结债权转让模式的运作中存在无资格主体资产证券化以及转让的“债权”性质违法,同时对平台信息中介定性加以肯定,得出债权转让模式应当废除的结论。
[Abstract]:As a new way of investment, P2P network lending through the Internet has gradually become known. From the establishment of PPDAI, the first P2P network lending platform in China, in 2007 to 2015, P2P network credit in China has been in the "grey" zone of the law until the recent introduction of the guidance on promoting the healthy Development of Internet Finance. It is clear that P2P network lending platform should adhere to the purpose of information intermediary status and assign the regulatory authority of the industry to the CBRC. However, this self-contradictory arrangement has aroused controversy over the characterization of online lending platforms in the industry. The transfer mode of creditor's rights is the innovation of traditional business model in P2P lending industry in China, and the operation of this business has also achieved good results. At the same time, however, the operation process of the model is controversial because of the risk of credit asset securitization and the existence of criminal crimes of illegal fund raising. Based on the above two controversial points, this paper discusses the legitimacy and legal risk of the transfer mode of creditor's rights, and puts forward the viewpoint that the mode of transfer of creditor's rights should be abolished. This paper takes the legitimacy of the mode of transfer of creditor's rights as the starting point, in addition to the introduction and conclusion, it is divided into five parts: the first part is the practical practice of the mode of transfer of creditor's rights. This part mainly introduces the practical practice of the transfer mode of creditor's rights, and puts forward that there are two problems in the mode of transfer of creditor's rights: legitimacy and operational risk, which leads to the dispute over the retention or abolition of the mode of transfer of creditor's rights. The second part is to discuss the legitimacy of the transfer mode of creditor's rights. Based on the investigation of Tang Ning model of Yixin platform, which is an example of creditor's rights transfer mode, this part puts forward two questions about the legitimacy of creditor's rights transfer model: the qualitative nature of the platform and the nature of the trading products. Combined with examples, this paper analyzes the specific legal relationship and legal nature between the four parties in the mode of transfer of creditor's rights, and reveals that the problem of the mode of transfer of creditor's rights lies in, The process of "collation and misallocation" of lender's claims by online lending platform is securitization of assets, and the essence of "creditor's rights" transferred belongs to securities. The third part is the risk bearing under the mode of transfer of creditor's rights. This part introduces that investors need to guard against Ponzi scheme under the mode of creditor's rights transfer, and the network platform must focus on the prevention of illegal fund-raising. The fourth part is the overseas investigation of the creditor's rights transfer mode of P2P lending platform. Through the investigation of the business operation method and risk supervision of Lending Club's securities model, this part analyzes the differences between China and the United States in the mode of creditor's rights transfer, and puts forward some suggestions beneficial to the supervision of our country. The fifth part is the suggestion of the mode of transfer of creditor's rights, that is, the conclusion part. On the basis of the above discussion, this part summarizes the operation of the transfer mode of creditor's rights, which is illegal in the securitization of assets of unqualified subjects and the nature of the transfer of "creditor's rights", and at the same time confirms the qualitative nature of the platform information intermediary. It is concluded that the mode of transfer of creditor's rights should be abolished.
【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】：D923.3

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