Study On The Legal System Of Safeguarding Financial Fairness Of Small And Micro-sized Enterprises

Since the Ministry of Industry and Information Technology and other four ministries issued the Standards for Classification of Small and Medium-sized Enterprises in July 2011, which gave a justification for small and micro-sized enterprises, those kinds of enterprises have become a topic of research in theory and practice. Honestly speaking, small and micro-sized enterprises have a role in activating market economy, providing jobs, and making up for the absence of social service. However, presently there are some factors hindering the development of small and micro-sized enterprises. Among them, the core one is the difficulty of financing. Currently, the academic circles focus on the difficulty and expensiveness of financing and make rich related results. But unfair financing problem of small and micro-sized enterprises, as another obstacle, has received less attention. At present, compared with large and medium-sized enterprises, small and micro-sized enterprises have been treated unequally in the financing, and the weaken position has been ignored. The problem of obtaining financing difficultly and costly have some relevance with the problem of obtaining financing unfairly, the former is an important manifestation of the latter. However, they are not the same. The issue of obtaining financing fairly directly concerns with the issue of social justice, and the latter is more fundamental. Good law, which contains the concept of fairness and justice, serves as a good path for governing the problem of obtaining financing unfairly of small and micro-sized enterprises. Based on above ideas, this thesis mainly researches the issues related to the legal system of protecting small and micro-sized enterprises to obtain financing fairly, regarding the financial fairness as the value idea. The purpose is to protect small and micro-sized enterprises for sharing the financial resources with large and medium-sized enterprises fairly through constructing the legal system which contains the idea of financial fairness. Except for the introduction and conclusion, this thesis is divided into three parts. The first part is chapter 1, which provides such a theoretical basis that mainly explains related concepts of financial fairness of small and micro-sized enterprises. The second part is chapter 2, which analyzes the current financing situation of small and micro-sized enterprises, and elaborates on the main manifestations of financial unfairness in reality and these institutional reasons. The third part includes chapter 3 to chapter 6. Chapter 3 discusses the basic principles of safeguarding financial fairness. On the basis of adhering to the basic principles, this chapter mainly explains the whole idea of constructing the legal system of safeguarding financial fairness. Chapter 4, chapter5, and chapter 6 respectively explain the financial fairness of opportunity, condition and result of small and micro-sized enterprises. The above three aspects provide specific recommendations to improve the law for protecting small and micro-sized enterprises to obtain financial resources fairly.Chapter 1 presents the financial fairness of small and micro-sized enterprises. This chapter is the logic starting of this thesis, which mainly discusses the connotation and annotation of the financial fairness of small and micro-sized enterprises, and provides theoretical supporting for analyzing the problems existing in the financing market with some legal advices. After the founding of the People's Republic of China, China has promulgated many versions of classification standards for small and medium-sized enterprises. This thesis defines the connotation of small and micro-sized enterprises in accordance with the latest version. The legal system this thesis presents mainly includes the ones which are in weak point instead of those with the status of state-owned capital or head office. Meanwhile, this thesis also brings individual industrial and commercial households into the generalized concept of small and micro-sized enterprises. These three aspects including law, economics and ethics can help explain the establishment of small and micro-sized enterprises, which specifically means, compared with large and medium-sized enterprises, small and micro-sized enterprises can obtain financial resources with the same possibility and market conditions, and the satisfaction degree of financing demand cannot have a wide gap. On the basis of Rawls' modern concept of justice, the financial fairness of small and micro-sized enterprises can be divided into opportunity, condition and result fairness according to different financing phases. Financial fairness of opportunity is access fairness, which refers to, compared with large and medium-sized enterprises, small and micro-sized enterprises have the same possibility of obtaining financial resources. Financial fairness of condition is process fairness, which refers to, compared with providing financial resources to large and medium-sized enterprises, banks should offer loans and set interest rates in accordance with the same market conditions. Financial fairness of result is result fairness, which refers to, compared with large and medium-sized enterprises, satisfaction degree of financing demand of small and medium-sized enterprises cannot have a wide gap.Chapter 2 presents the main manifestations and these institutional reasons of financial unfairness of small and micro-sized enterprises. The investigation of current financial situation of small and micro-sized enterprises shows a lot of unfair phenomenon in small and micro-sized enterprises financing. The financial unfairness of opportunity manifests the narrow financial channels which lack of level. There are two institutional reasons. Firstly, the absence of legal system in improving capacity of small and micro-sized enterprises. Secondly, the absence of top-level design of current rules which also have defects in terms of specific content. The financial unfairness of condition concludes compulsive purchasing financial and insurance products, compulsive transferring loans to deposit and linking deposit and loans, compulsive purchasing acceptance bill, and undeservedly asking the owners of small and micro-sized enterprises to provide joint and several guarantee. There are three institutional reasons. Firstly, the legal system has limitations in dealing with the problem of structural imbalance in financial market. Secondly, the legal system has inadequate efforts in responding to the problem of substantial inequality. Thirdly, governance failure of current rules. The manifestation of financial unfairness of result is that compared with large and medium-sized enterprises, satisfaction degree of small and micro-sized enterprises is extremely low. According to investigation data, satisfaction degree of demand for financing of most small and micro-sized enterprises is below sixty percent. Meanwhile, the existing financial channels can mainly satisfy the demand for financing of large and medium-sized enterprises, especially large ones. There are two institutional reasons. Firstly, the defects of legal system of safeguarding financial fairness of opportunity and condiction. Secondly, the legal system has inadequate efforts in protecting small and micro-sized enterprises aslant by government.Chapter 3 presents the basic principles and the whole idea of safeguarding financial fairness of small and micro-sized enterprises. The basic principles are the concrete expression of the financial fairness value, and also the guiding ideology of constructing law system. The principle of following the market rule mainly includes two aspects. One is that safeguarding financial fairness should take competition mechanism, supply and demand mechanism and price mechanism operating effectively as the core. The other is that the government should serve as the leader and service provider of financial market development. The principle of safeguarding financial fairness synthetically, on one hand, requires the realization of the financial fairness of opportunity, condition and result synthetically, and on the other hand, requires the utilization of a variety of means to safeguard financial fairness. The principle of insisting on financial innovation to promote financing fair requires that financial innovation should serve the real economy, encourage financial innovation while supervising financial innovation moderately. The principle of strengthening financial supervision to safeguard financing requires the establishment of a regulatory system including government supervision, industry self-regulation and social supervision. The principle of safeguarding financial fairness under the rule of law requires the safeguarding of financial fairness based on the law, and the taking of the informal financial system as a supplement. The whole idea of safeguarding financial fairness shows the overall requirements from four aspects, including legislation, judicature, enforcement and compliance, and constructs a legal institutional framework of safeguarding financial fairness of small and micro-sized enterprises.Chapter 4 presents the construction of the legal system of safeguarding financial fairness of opportunity of small and micro-sized enterprises. In order to improve the financing capacity, should build cluster financing and financing guarantee legal systems of small and micro-sized enterprises respectively. Simultaneously, should build diversified and multi-level financing channels according to law in response to the features of small and micro-sized enterprises. In the aspect of financing platform, the government should build a financing platform with three levels in national, regional and private terms. This section mainly discusses the positioning, function, listing standard, the legal system of equity and debt financing of the financing platform with three levels, and the construction of the transfer plate legal system. In the aspect of financing institution, the government should construct the legal system of financing institution of small and micro-sized enterprises, specifically in order to keep small and medium-sized banks and small loan companies, which exclusively or primarily serve the small and micro-sized enterprises. In the aspect of financing instrument,the government should regulate the business of collective bond and private bond of small and micro-sized enterprises. Overall, compared with the existing financial channels of large and medium-sized enterprises, in order to meet financial demand of small and micro-sized enterprises of different types or different stages of development, the government should build targeted and multi-level financing channels according to law in response to the features of small and micro-sized enterprises.Chapter 5 presents the construction of the legal system of safeguarding financial fairness of condition of small and micro-sized enterprises. In order to ensure the banks to provide financial resources in accordance with the same market conditions, firstly, the government should transform the basic interests into the rights, namely the interests of independent choice and fair transaction, and enhance the protection by law. Secondly, the government should respectively construct the binding and incentive legal system according to the theory of binding and incentive legal regulation. The former requires the supervision of banks to treat small and micro-sized enterprises equally by giving the duty, responsibility and legal liability to banks and the financial supervisory institutions. The latter requires to carry out the means of administrative guidance, administrative reward and contract menu. Finally, the government should construct legal relief mechanism, and place the complaint mechanism as the pre relief mechanism, the FOS mechanism as the core relief mechanism and the lawsuit mechanism as the supplement relief mechanism.Chapter 6 presents the construction of the legal system of safeguarding financial fairness of result of small and micro-sized enterprises. The main path of safeguarding financial fairness of result is to increase satisfaction degree of financial demand of small and micro-sized enterprises according to law. The protection is targeted to the small and micro-sized enterprises which are in weak point, but hard-working and in line with the demand of the development of market economy. These small and micro-sized enterprises cannot obtain financial resources through the existing financial channels, consequently should be relieved under the idea of people-oriented. Specifically, should definite the government the dominant position in safeguarding financial fairness of result of small and micro-sized enterprises according to law, and improve existing legal measures of small and micro-sized enterprises assistance that the government puts forward, including construction of legal system of performance evaluation, collective bond of credit enhancement of small and micro-sized enterprises, government guidance fund, policy guarantee, and re-lending for supporting small and micro-sized enterprises.