我国公证介入民间借贷之困境及其出路研究

发布时间：2018-06-19 02:45

本文选题：公证 + 民间借贷　；参考：《山东大学》2017年硕士论文

【摘要】：随着经济体制改革的不断深入,民间借贷日趋活跃,借贷规模不断扩大。然而,由于我国的法律体系尚不健全,其风险不断增加,由此引发的纠纷数量也随之增长,大量纠纷成讼,人民法院受理案件数量快速增加。公证制度旨在为社会提供真实、可靠、有法律效力的公证文书,以预防纠纷、减少诉讼,规范法律行为,保障法律的正确实施。在民间借贷纠纷日增的今天,公证作为一种重要的非讼纠纷解决方式,以其效率高、证明力强的特点被越来越多的人认可和选择。经公证赋予强制执行效力的债权文书可以直接申请法院予以执行,这有利于减少此类案件数量,减轻法院的负担,有利于迅速及时地解决纠纷,节约有限的司法资源。但长期以来,由于民间借贷风险高且审查难度大,再加之公证机构公证员办理民间借贷公证业务的水平有待提高等原因,民间借贷合同公证程序一直未能受到应有重视。现行法规范虽然明确规定公证的范围包含借款合同,但司法实践中大多数公证机构仅为个人与银行之间的贷款合同出具公证债权文书,产生了民间借贷合同公证难的问题。这不仅使得公证机构失去在民间借贷公证这一领域的业务,而且难以发挥公证制度应有的功效。鉴于此,在现代司法理念框架下,公证有效介入民间借贷已日益显示出其必要性和迫切性。本文拟从我国司法实践出发,对公证介入民间借贷的运行现状进行分析和梳理,对目前民间借贷合同公证难的原因进行剖析,以充分揭示我国现行公证介入民间借贷难的核心和关键问题,进而有针对性地提出公证介入我国民间借贷的完善思路。
[Abstract]:With the deepening of economic system reform, private lending is becoming more and more active and the scale of borrowing is expanding. However, because the legal system of our country is not perfect and its risk is increasing, the number of disputes caused by it has also increased, a large number of disputes have been litigated, and the number of cases accepted by the people's courts has increased rapidly. The purpose of notarization system is to provide the society with authentic, reliable and legally effective notarization documents in order to prevent disputes, reduce litigation, standardize legal behavior and ensure the correct enforcement of law. Nowadays, as an important non-litigation dispute resolution method, notarization has been accepted and chosen by more and more people because of its high efficiency and strong proof. The notarized obligatory documents can be directly applied to the court for enforcement, which is helpful to reduce the number of such cases, lighten the burden of the court, solve disputes quickly and timely, and save limited judicial resources. However, for a long time, due to the high risk of private lending and the difficulty of vetting, coupled with the notaries of civil institutions to improve the level of non-government loan notarization business and other reasons, the civil loan contract notarization procedure has not been given due attention. Although the scope of notarization includes loan contracts, in judicial practice most notaries only issue notarized creditor's rights documents for loan contracts between individuals and banks, which leads to the problem of notarization of folk loan contracts. This not only makes notaries lose their business in the field of civil loan notarization, but also makes it difficult to play the role of notarization system. In view of this, under the framework of modern judicial concept, the necessity and urgency of the effective involvement of notarization in private lending has been increasingly demonstrated. Starting from the judicial practice of our country, this paper analyzes and combs the current operation of notarization in folk lending, and analyzes the reasons why it is difficult to notarize folk loan contracts. In order to fully reveal the core and key problems of our country's current notarization involved in folk loans and loans, and then put forward the perfect thinking of notarization intervention in Chinese folk lending.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D926.6

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