Research On Legal Regulation Of The Informal Finance

In the history,the informal finance had long existed in the ancient society with various forms and development.Throughout the world,the informal finance is also not unique to China.In recent years,there are increasing economic and social events in the press triggered by the informal finance.On the one hand,the informal finance has its huge volume and rapid development,which makes people realize its great vitality.On the other hand the informal finance has already produced huge destruction,which aroused the continuous concern of the academic field.It is urgent how to convert this destructive vitality into the power so as to boost the economic development.From the angle of legal regulation,this article attempts to seek an optimal solution and to gradually establish a legal system to promote the healthy and orderly development of the informal finance,in the perspective of typed regulation and on the basis of the principal,interest rate,the regulatory system.The first chapter is based on the comparative analysis of the definition of civil finance at home and abroad,and further explains the connotation and extension of the informal finance.It is a sort of financial transaction or activity carried out by natural persons,legal persons and other organizations that are outside the state financial supervision and are not part of the nationally recognized formal financial institutions.The informal finance has the characteristics of dynamic,ambiguity,blindness,efficiency and relativity,self-discipline and risk.The informal finance can supplement the formal finance to meet the diversification of the financing needs of the market,with the formal financial competition to promote the efficiency,rational allocation of financial resources so as to further guide the formation of the private capital.As a kind of connotation and expansive fuzzy concept,the research on the informal finance can deepen the understanding of the meaning of the informal finance and the prerequisite for the study of civil financial legal regulation.The private sector is divided into simple form,intermediate form,complex form in accordance with the fact that whether the informal finance is an occasional civil action or a regular business behavior,whether it is the use of its own funds or the operation of other people's funds,whether there are several criteria for the systemic risk.The simple form of the informal finance refers to the financial behavior between the direct parties,which have the characteristics of small scale,sporadic,equality and individuality.The parties use their own funds and do not cause systemic risks.The complex form of the informal finance is the financial form of the organization or institution that absorbs and operates public funds.Such forms of the informal finance either absorb large amounts of funds that are not specific to the public,or operate various exchanges and borrowing business in order to obtain the different business type,which easily leads to the systemic risk.The middle form of the civil finance is between the simple form and the complex form of the informal finance,compared to the simple civil finance,its financial intercourse behavior is regular rather than occasional;for example,compared to the complex informal finance,it does not absorb public funds.This classification is the basis for this article on the discussion of the legal regulation of the informal finance.In the second chapter,the author makes a detailed analysis on the current situation and norms of the development of China's civil financial legal system.This chapter analyzes the problems existing in the legal system of civil finance in China,problems including the low level of institutional effectiveness and poor coordination.The interest rate system is too simple and lacks flexibility;The body access standards are unreasonable,civil finance legal and illegal boundaries are unknown;regulatory responsibility is not clear,the regulatory approach is not differentiated;Through the reference to the beneficial experiences of the legal regulation in such countries as the United States,Germany,Japan,China Taiwan,Bangladesh and other civil financial development,it has been enlightened to the construction of China's civil financial legal system.The goal of China's civil financial legal regulation is to establish a multi-level financial system.Therefore the existing private financial sector is divided into different forms,for the simple form of private finance,to the autonomy of self-management,self-responsibility private governance mechanism,mainly by the market Supply and demand mechanism from the regulation,the application of civil and commercial law of the general norms;for the middle of the form of private finance,we should take the form of the adjustment and standard guidance attitude,and the use of relatively flexible,loose legal regulatory measures;and we should also strive to maximize its play as a regular financial supplement form;for the complex form of private finance,it should actively promote its standardization,sunshine,legalization of the track on the development of similar to the formal financial regulatory measures,but also pay attention to no destruction of its unique characteristics.In short,a perfect financial system must be benign competition,the main body of diverse,balanced financial system.According to the status quo and existing problems of China's legal regulation,the focus should be on the subject of civil finance access and exit,interest rate incentives and control,regulatory system selection and rights and responsibilities.The third chapter is concerning the study on the legal regulation of the informal finance.We divide the subject of the informal finance into three types: simple form,middle form and complex form.The classification of legal regulation has a realistic relevance and effectiveness.After the introduction of the main representative forms of various types of private financial subjects and their legal status,the legal direction and the concrete measures in each form are further discussed.The main representative of the simple form of the informal finance is the private lending,and it should adhere to the principle of the contract autonomy.It should be noted that its main body does not need to put forward special requirements.For the middle of the civil financial subject,this chapter discusses the improvement of its legal advice according to the size of its risk to make different legal arrangements,especially in the representative and typical significance of the professional lenders and associations.For example,for the complex form of the informal finance subject,it will be transformed into formal finance,which is not the best choice,but should be beneficial to the financial form so as to confirm its main position,supplemented by the corresponding legal system,pay attention to the original form of financial characteristics,rather than with the formal financial application of the same standard to force it to the formal financial development.This part of the profit-making private fund-raising and mutual aid of rural financial organizations as an example is used to discuss the complex form of private financial legal improvement of the main recommendations.The fourth chapter is based on the analysis of the necessity,type and regulation of the informal financial interest rate.And then this paper analyzes the current situation of China's civil financial interest rate regulation.China's legal regulation of the informal financial interest rates on the interest rate and interest rate calculation standards is not unified,and there is no distinction between production loans and life-style forms of borrowing.What's more,the interest rate is not based on different types of the informal financial regulation,and the usury failed to class criminal responsibility and other issues.In view of the above existing problems,this paper puts forward the specific system design of the legal regulation of the informal financial interest rate from the angle of legislation,judicial and law enforcement,on the basis of investigating the actual situation of the private financial interest rate and the main factors influencing its fluctuation.So we should distinguish between simple forms,intermediate forms and complex forms of the informal financial forms so as to carry out different interest rate regulations.For the simple form of the informal finance,the law of mandatory intervention should be reduced as much as possible for the interest rate decision-making power to the private lending;for the middle and complex forms,it should apply a certain interest rate and interest rate period.The upper limit of its interest rate should be more formal than the formal finance.It is necessary to distinguish between productive loans and living loans to the upper limit of interest rate classification regulation.For the production of borrowing,the law of the borrower to carry out special protection is not necessary.Therefore you can appropriately raise the interest rate ceiling,for life loans,borrowers in the negotiations in comparison.Obviously for the disadvantaged position,the law is necessary to set the harsh rate cap.It also should establish different levels of high interest rate system,civil,administrative,criminal responsibility.In short,the concept of distinction between regulations should be approved through all areas of interest rate regulation.In addition,it is conducive to the construction of diversified financial markets,dynamic and flexible,multi-level private financial interest rate system,for example the judicial power to give judges discretion,enforcement on the use of flexible law enforcement in the administrative law.The fifth chapter discusses the choice of legal path regarding China's civil financial supervision system.China's informal financial regulatory system includes the lack of regulatory bodies,regulatory concept of dislocation,regulatory measures offside,regulatory performance dislocation.The informal financial supervision should also uphold the concept of hierarchical and focused supervision.For the simple form of the informal finance,we should give the body full financial freedom and rights.And there is no need of special supervision,so you can encourage the establishment of the financial registration center in the government to achieve the appropriate legal protection,to facilitate the government on private financial dynamics.The government-led supervision of the right mainly exists in the local government level;for the complex form of private finance,the same applies to the main government regulation.For the self-regulatory supervision supplemented by the regulatory model,the state should actively intervene to take a formal financial similar to the regulatory approach,and the government regulation should be dominated by the national authorities,with the cooperation of local branches.The specific regulatory authorities should be determined by the China Banking Regulatory Commission and the local banking regulatory bureau,which work as a complex form of private financial regulatory agencies,and give the local financial office for the middle of the civil financial supervision.The informal financial industry association plays its complementary role in formulating industry standards,strengthening supervision and inspection,registering and managing member information,and establishing information platform.This hierarchical supervision mode can give full play to the advantages of active innovation of the informal finance,to avoid the rigid and conservative management of government defects,and to maintain the vitality of financial markets and competition.