产权回报式房地产众筹相关法律问题研究

发布时间：2019-07-05 20:26

【摘要】：近年来互联网经济在中国得到了飞速发展,促进了金融模式创新。在第三方支付手段和社交媒体的催化作用下,互联网金融产业开始崭露头角。互联网金融行业创新使得传统的融资渠道发生了巨大变化,“众筹”作为互联网融资方式的产生恰恰说明了这一点。“众筹”,顾名思义,筹得大众之资。“众筹”的出现对于过去只能把融资渠道限定在银行和贷款公司等传统金融机构的产业提供了另外一条道路,即面向大众。房地产行业是传统资金需求大户,融资渠道的多元创新自然不能令其袖手旁观,更何况这一新兴的融资模式还关联着房地产行业终端-购房市场。但是目前我国法律从对广大投资者利益考量的角度出发,对于企业和个人的融资行为有着严格的限制。此外法律规定对于社会发展的滞后性也使得“房地产众筹”融资方式存在困难并且具有相当大的法律风险和不确定性。此外我国投资者投资渠道狭窄,近年来房价不断高企,固定资产因为最具有升值保值能力而受到大家热捧。因此“房地产众筹”中,以融资开发(合作建房)即“产权回报式房地产众筹”最能吸引大众的目光,调动投资者积极性。此外该众筹方式在融合了传统房地产行业需求的同时也充分利用了新型互联网金融创新。因此通过剖析“房地产众筹”行为的相关性质和特点,探求优化法律角度对于“产权回报式房地产众筹”监管,无论对于新兴金融模式的发展还是传统行业转型升级都具有积极意义。本文对于“产权回报式房地产众筹”的相关问题论述可大致分为四个部分第一部分,界定“产权回报式房地产众筹”的相关概念和意义。本文通过对众筹基本概念的阐述明确众筹特征,在明确众筹的特征和概念基础上,以投资者获得众筹收益为标准梳理出房地产众筹的分类特征,进而引出本文讨论的重点即产权回报式房地产的相关概念。在此期间重点突出产权回报式房地产众筹的基本概念和现实意义明确本文讨论的主题。产权回报式房地产众筹与其他类型的房地产众筹的主要区别在于投资者获得众筹的回报方式即房屋产权,价值较高,产业链较长。房地产众筹在我国模式多样,不同模式有不同的产品结构和交易方式,而本文的研究对象——产权回报式房地产众筹是现有各类房地产众筹中最符合众筹和房地产行业特点的模式。产权汇报式房地产众筹对于各参与主体均有重要意义,其为开发商融资提供了便利、使购房者的需求得到满足、投资者投资渠道得以拓宽。第二部分透过分析产权回报式房地产众筹商业模式中涉及到的法律关系,明确产权回报式房地产众筹个要素主体之间所存在的具体法律关系,以及现有法律框架下对于各类法律关系的规定,为理清产权回报式房地产众筹存在的法律问题奠定基础。众筹发起方与众筹平台存在着居间合同法律关系和委托合同法律关系,其中居间合同法律关系更具有典型意义。众筹融资方与投资方存在的法律关系有债权法律关系、股权法律关系、买卖合同法律关系、以及多种法律关系并存的混合式法律关系。由于众筹标的的特殊性使得投资者内部存在有按份共有法律关系和共同共有法律关系。第三部分以产权回报式房地产众筹各参与方为主体,从投资者、开发主体(即开发商)、房地产众筹平台三个角度分析各参与主体在参与产权回报式房地产众筹过程中可能存在的法律问题。存在的法律问题既有因产权回报式房地产众筹特性而产生的问题也有众筹所存在的共性法律问题,众筹主体存在的主要法律问题有房地产众筹与非法集资的区分、违反商品房预售的法律规定。众筹平台存在的问题有关联交易,信用、信息、自己管理能力不足。至于投资者其存在的主要问题有投机问题、共有人权利难以实现以及合同违约和合同欺诈。第四部分,针对产权回报式房地产市场运营中出现的问题,为解决我国产权回报式房地产众筹相关法律问题提供具体可操作的措施。笔者通过借鉴国外的经验从投资者权益保护的角度出发提出相应对策。首先对房地产开发主体的资格进行限制,并通过细化拆分众筹项目、构建众筹份额的退出机制等手段出发明确投资者产权并避免合同欺诈等法律问题产生。其次在众筹平台运营监管方面,通过加强众筹平台的独立性建设,以及对资金的第三方托管并建立严格的信息披露审核机制提高对于众筹平台的管控能力。最后在合格投资人的选择方面建立准入机制并构建风险意识教育以提高投资者抗风险的能力。
[Abstract]:In recent years, the Internet economy has been developing rapidly in China, which has promoted the innovation of financial mode. With the catalytic role of third-party payments and social media, the Internet financial industry has begun to emerge. The innovation of the internet financial industry has changed the traditional financing channel, and the "crowdfunding" has just explained this. The "crowdfunding", as the name implies, raised the public's capital. The emergence of "crowdfunding" has provided another way for the past to limit the financing channel to the industry of traditional financial institutions, such as banks and loan companies, that is, to the public. The real estate industry is the large demand of the traditional fund, and the multi-element innovation of the financing channel can't stand idly by. Besides, this new financing model is also associated with the real estate industry terminal-the housing market. But at present, the law of our country, from the point of view of the interests of the general investors, has a strict limitation on the financing behavior of the enterprise and the individual. In addition, the law provides that the lag of social development also makes the "real estate crowdfunding" financing way difficult and has considerable legal risk and uncertainty. In addition, the investment channel of China's investors is narrow, and in recent years, the house prices are high, and the fixed assets are highly praised by the people because of the most competitive ability. Therefore, the real estate crowdfunding ", with the financing development (cooperative building), that is, the property right return type real estate crowdfunding" best attract the public eye, mobilize the investor's enthusiasm. In addition, the crowdfunding mode also makes full use of the new type of Internet financial innovation in the integration of the traditional real estate industry demand. Therefore, through the analysis of the related nature and characteristics of the "real estate crowdfunding" behavior, it is of positive significance to seek to optimize the legal angle to the "property-return real estate crowdfunding" supervision, whether for the development of the new financial mode or the transformation and upgrading of the traditional industry. The related problems of the "property-return real estate crowdfunding" are generally divided into four parts, and the relevant concepts and meanings of the "property-return real estate crowdfunding" are defined. In this paper, through the elaboration of the basic concept of the public, the features of the crowdfunding are clarified, and on the basis of the features and concepts of the crowdfunding, the classification features of the real estate crowdfunding are sorted out by the investors, and then the relevant concepts of the property right-return real estate discussed in this paper are drawn out. During this period, the basic concept and the practical significance of the real estate crowdfunding of the property right are emphasized, and the subject matter discussed in this paper is clear. The main difference between the property right-return real estate and other types of real estate is that the return of the investors is the property right, the value is higher, and the industrial chain is long. The real estate crowdfunding is in our country mode, different models have different product structure and trading way, and the research object _ property right-return real estate crowdfunding is the most common mode of all kinds of real estate crowdfunding and the characteristics of real estate industry. The property right report type real estate crowdfunding is of great significance to all the participating subjects, which provides convenience for the development of the developer, and the demand of the home buyers is met, and the investment channel of the investors is widened. in that second part, through the analysis of the legal relationship involved in the property-return real estate's business model, the specific legal relationship between the property right-return real estate and the main body of the real estate, as well as the requirement for various legal relations under the existing legal framework, To lay the foundation for clarifying the legal problems existing in the property-return-type real estate. There are the legal relation between the sponsors and the crowdfunding platform, and the legal relation between the intermediary contract and the contract law, and the legal relation of the intermediate contract is more typical. The legal relationship between the public financing party and the investor has the legal relationship of the creditor's rights, the relationship between the equity law, the legal relation of the sales and sales contract, and the mixed legal relationship with the existence of a variety of legal relations. Because of the particularity of the subject matter, there is a common legal relationship and a common legal relationship among the investors. The third part is to analyze the possible legal problems of the participating entities in the process of the real estate crowdfunding from the investors, the development subject (i.e. the developer) and the real estate crowdfunding platform. The existing legal problems are not only the problems arising from the property right-return real estate crowdfunding characteristics, but also the common legal problems existing in the crowdfunding. The main legal problems existing in the crowdfunding main body include the distinction between the real estate crowdfunding and the illegal fund-raising, and the violation of the legal provisions of the pre-sale of the commercial house. The problems existing in the crowdfunding platform are related transaction, credit, information, and the self-management capacity is insufficient. As for investors, there are speculation problems in the main problems, such as the realization of the realization of the rights and the contract default and contract fraud. The fourth part, aiming at the problems in the operation of the property right return type real estate market, provides the concrete operational measures for solving the legal problems related to the property right return type real estate market. Based on the experience of foreign experience, the author puts forward corresponding countermeasures from the perspective of the protection of the investors' rights and interests. First of all, the qualification of the real estate development subject is limited, and the legal problems such as contract fraud and other legal problems are defined by the means of refining and splitting the crowdfunding project, building the exit mechanism of the crowdfunding share, and the like. Secondly, in the aspects of the operation and supervision of the crowdfunding platform, the independent construction of the crowdfunding platform, and the third-party hosting of the funds and the establishment of a strict information disclosure and auditing mechanism to improve the management and control ability of the crowdfunding platform. Finally, the access mechanism is set up in the choice of qualified investors and the ability to raise the risk of the investors is improved.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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