我国P2P网贷平台资金第三方托管存在的问题及法律对策

发布时间：2018-04-17 13:22

本文选题：P2P网贷 + 托管　；参考：《安徽大学》2017年硕士论文

【摘要】：P2P网贷模式自引入我国之后就得到了飞速发展,但是由于发展时间较短,且没有成熟的模式可以借鉴,加之法律制度不健全,截止到2016年,全国问题平台数量达到1741家,其中平台跑路、资金提现困难占了较大比重。虽然P2P网贷平台在服务小微企业和普通大众中起到了很大的作用,但是平台资质参差不齐,平台跑路,资金提现困难等现象时有发生。资金安全问题正逐渐成为P2P网贷平台需要解决的首要问题,作为确保P2P网贷平台资金安全的第三方托管制度被重视起来。2016年底,全国大多数P2P网贷平台都宣称实现了资金第三方托管,但P2P网贷平台引入资金第三方托管制度只有两年多的时间,目前尚处于探索阶段,为了确保第三方托管制度能够真正发挥作用,真正做到"既托又管",亟需对第三方托管进行深入研究,以期完善。第三方支付机构和商业银行是目前我国P2P网贷平台资金第三方托管的两大主体。基于托管费用、交易便捷性和准入门槛的考虑,目前第三方支付机构成为了绝大部分P2P网贷平台的选择,而少数背景实力雄厚的P2P网贷平台则选择了商业银行。从以上两种托管模式的比较分析可以看出,不管是采用哪种模式,都各有优缺点,而且就资金第三方托管本身来说,引入该制度的时间还比较晚,尚处于起步和探索阶段,面临着诸多问题和法律风险。基于此,应当以P2P网贷平台资金第三方托管的发展历史为切入点,对P2P网贷平台资金第三方托管中的法律关系进行分析。对目前存在的两种托管模式进行了比较分析,深入分析了目前P2P网贷平台存在的诸多问题及法律风险,比如第三方支付机构托管P2P资金存在的问题,具体包括缺乏法律支撑,托管机构权责不明、定位不清,第三方支付机构参与虚假宣传,第三方支付机构"托而不管",技术风险等等。又如商业银行托管P2P资金存在的问题,具体包括银行违规经营,独立性不强,违反托管合同,银行托管系统开发难度大等等。针对存在的上述问题,应该完善P2P网贷平台资金第三方托管立法,明确第三方托管的权利和义务。明确违规托管、虚假宣传的法律责任,厘清存管与托管,强化托管方责任,监督意识。统一网贷平台资金第三方托管体系,强化对P2P网贷平台的社会监督。完善P2P网贷行业信息披露制度,加强P2P网贷行业自律及风险防控能力等等。
[Abstract]:The P2P network loan model has developed rapidly since it was introduced into our country. However, due to the short development time, the lack of mature model to learn from, and the imperfect legal system, by 2016, the number of national problem platforms has reached 1741.Among them platform runs the road, the difficulty that funds draws cash to occupy a large proportion.Although the P2P network loan platform has played a great role in serving small and micro enterprises and the general public, the platform qualifications are uneven, the platform runs the road, the funds are difficult to collect and so on.The problem of capital security is gradually becoming the primary problem that needs to be solved by P2P network loan platform. As a third party hosting system to ensure the funds security of P2P network loan platform, the third party hosting system is paid more attention to. At the end of 2016,Most P2P network loan platforms in China claim to have realized third-party hosting of funds. However, the P2P network loan platform has only introduced the third-party fund hosting system for more than two years, and is still in the exploratory stage.In order to ensure that the third party trusteeship system can play a real role and achieve "trust and management", it is urgent to conduct in-depth research on third party trusteeship in order to perfect it.Third-party payment institutions and commercial banks are the two main bodies of the third-party hosting of P2P loan platform funds in our country.Based on the consideration of hosting fee, transaction convenience and entry threshold, the third-party payment institutions have become the choice of most P2P network loan platforms, while a few P2P network loan platforms with strong background choose commercial banks.From the comparative analysis of the above two types of trusteeship models, we can see that, no matter which mode is adopted, each has its own advantages and disadvantages, and as far as the third party trusteeship of funds is concerned, the time of introducing the system is relatively late, and it is still in its infancy and exploration stage.Faced with many problems and legal risks.Based on this, it is necessary to analyze the legal relationship in the third party trust of P2P network loan platform based on the development history of P2P network loan platform fund third party hosting.This paper makes a comparative analysis of the two kinds of hosting modes, deeply analyzes many problems and legal risks existing in the P2P network loan platform, such as the problems existing in the P2P funds of third-party payment institutions, including the lack of legal support.The authority and responsibility of the trust organization are unclear, the position is unclear, the third party payment organization participates in false propaganda, the third party payment organization "entrusts but does not care", the technical risk and so on.For example, the problems of P2P funds in commercial banks include bank illegal operation, weak independence, breach of trusteeship contract, difficulty in developing bank trusteeship system, and so on.In view of the above problems, we should perfect the legislation of P2P network loan platform fund third party trusteeship and clarify the rights and obligations of third party trust.Clear legal liability of illegal trusteeship, false publicity, clarify the custody and custody, strengthen the trustee responsibility, supervision consciousness.Unifies the net loan platform fund third-party hosting system, strengthens the social supervision to the P2P network loan platform.Improve the P2P network loan industry information disclosure system, strengthen the P2P network loan industry self-discipline and risk prevention and control capabilities.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.282

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