| In 2005,Zopa,the first online lending company in the world,was founded in the UK.As an attempt of inclusive finance and “financial disintermediation”,online lending has developed rapidly and steadily in Europe and the United States with the support of their well-developed credit reporting systems.Online P2 P lending was introduced into China in 2007,but the development of the industry was relatively slow in the early stage due to the lack of complete industry norms and successful examples.With the rapid development of the domestic economy,market demand has suddenly expanded.From 2013 to 2018,the online lending industry ushered in explosive development,and there are about 5,000 online lending platforms at the peak.Online lending is a product of the deep integration of technological innovation and institutional innovation.The essence of Internet finance being still finance,it has the same risks as traditional finance such as credit risk,liquidity risk,and moral hazard.At the same time,due to such unique characteristics of Internet finance as cross-regional,cross-industry,cross-institution and technology-intensive,internet finance also has non-traditional and hidden financial risks such as operational risks and data security risks.In addition,the government adopted an attitude of encouragement in the early development period of online lending,the nature of online lending is still not clear,internal governance is imperfect and legal supervision is weak,which have led to endless problems and risks in the development of online lending in China.Therefore,studying the risks and legal issues involved in each subject of online lending and exploring the development path of the rule of law in online lending have both important theoretical and practical significance.The basic elements of scientifically determining research objects are the prerequisite and basis for the in-depth development of argumentation.The thesis first introduces the concept of online lending,business models,legal entities,legal relationships and the game relationship between legal entities,and focuses on the legal nature of online lending,pointing out that online lending is a brand-new financial concept and method which is based on internet thinking,and it is the direct lending practice between natural persons,legal persons and other market entities with the help of network lending institutions.It is not only different from bank loans,but also from borrowing based on internet technology.In terms of the nature of institutions,the legal nature of online lending institutions is neither a financial nor a quasi-financial one,but an information intermediary.In the discussion of risks and legal issues involved,based on the perspective of the horizontal subject of online lending,the thesis conducts a systematic and in-depth analysis of the risks and legal issues that may be involved in online lending lenders,borrowers and platforms,as well as research and analysis on online lending issues such as contract validity,civil liability,assignment of creditor’s rights,time limit,bid splitting,illegal fund-raising,litigation jurisdiction,distribution of evidential burden,etc.Regarding the issue of illegal fund-raising in online lending,centering on the illegality,openness,attractiveness and social nature of illegal fund-raising,combined with practice,the “four characteristics” of illegal fund-raising behavior in online lending have been identified.As for whether the illegal fund-raising behavior should be convicted as the crime of illegally absorbing public deposits or fund-raising fraud,there are generally different standards in judicial practice,and it is difficult to tackle.The key to the difference is to measure whether the perpetrator has the subjective purpose of “illegal possession”.Regarding the transfer of creditor’s rights on online lending platforms,I profoundly analyzed the “professional lender” model in platform creditor’s rights transfer,and pointed out that within such model,professional lenders are often platform executives,this close relationship between online lending platforms and professional lenders can easily provide the platform or related institutions for self-financing and Ponzi schemes to operate.It is also prone to false claims,capital pools,and high leverage.Therefore,the “professional lender” model should be legally prohibited.Online lending originated in developed countries such as the United Kingdom and the United States,where have established mature internet lending legal systems.For other countries,their legislative ideas and systems have played an exemplary role.Throughout the countries with mature development of online lending,their systems and mechanisms have their own characteristics.For example,the United States has established a scientific and complete credit evaluation mechanism-the FICO scoring system,which provides an important guarantee for the smooth and healthy operation of the online lending industry.The biggest feature of the UK’s online lending industry supervision is the "two-wheel drive",that is,the self-discipline role of industry associations is fully brought into play while government agencies are implementing prudential supervision.Japan attaches great importance to the protection of the rights and interests of financial consumers,and strictly check the entry of online lending,in order to protect the rights and interests of consumers.As a model of Internet financial innovation,online lending has both traditional financial risks and special risks arising from the Internet.It must be supervised to avoid the possible macro systemic risks.However,regulations lagging behind development and laws lagging behind the market also exist in the development of the online lending industry.The thesis analyzes the system and mechanism defects existing in China’s online lending supervision system from the perspective of macro management.In terms of regulatory orientation,it is pointed out that China’s supervision of online lending has repeatedly fallen into a strange circle of “disruption and death”.The fundamental reason lies in the failure to properly handle the relationship between financial innovation and supervision.In terms of the regulatory model,the thesis deeply analyzes the disadvantages of the current separate regulatory model,such as regulatory arbitrage,regulatory competition,information asymmetry,and suppression of financial innovation,and concluded that the separate regulatory model is no longer suitable for the development of Internet finance in China.Regarding the regulatory legal system,the thesis points out that China’s existing online lending regulatory legal system has low legislative levels,limited effectiveness,and some regulations are severely lagging behind,which does not meet the needs of industrial development,and serves as the basic system design for the operation and supervision of the online lending industry.The “Interim Measures for the Management of Business Activities of Online Lending Information Intermediary Institutions” also has some omissions in the qualitative nature of online lending platforms,lack of threshold settings for capital and practitioners,as well as interest rate and fee rules,which may easily lead to usury risks.The Internet shall not become a lawless place.Governance with the spirit of the rule of law is based on the rules of fairness and justice.Therefore,to construct a scientific and efficient network lending governance system is the ultimate aim of the paper.The thesis puts forward the idea of constructing China’s online lending governance system: in terms of supervision concept,it proposes to correctly handle the relationship between financial innovation and financial supervision,and establish a financial supervision concept that combines flexible supervision,appropriate supervision,principle supervision and rule supervision.Regarding the improvement of the legislative system for online lending,it is recommended to raise the legislative level of internet financial supervision,establish an industry access system,scientifically define business boundaries,clarify risk bottom lines,set interest rate control rules,improve platform exit mechanisms,and clarify platform legal responsibilities.With regard to the protection of the rights and interests of financial consumers,it proposes to establish the basic principles of preferential and moderate protection,to improve the protection system of the “three rights” of financial consumers,and to create a complete financial consumption dispute resolution mechanism.With regard to the construction of the Internet financial credit investigation system,it is emphasized to actively promote big data credit investigation,strengthen the construction of credit investigation data sharing exchange system,formulate unified online loan credit investigation data evaluation standards,and vigorously develop personal credit investigation.In terms of the self-discipline of the online lending industry,it advocates the transfer of administrative functions of government supervision,improves the management system of self-regulatory organizations,and clarifies the self-discipline punishment mechanism of the industry.The thesis proposes to strengthen the supervision of online lending technology,innovate supervision methods,use big data,cloud computing,block chain,artificial intelligence and other emerging network technologies to supervise Internet finance,and continuously improve supervision efficiency.This paper also recommends the creation of an experimental supervision model,and proposes to implement a sandbox supervision model in online lending supervision.Sandbox supervision with strong two-way communication can not only convey information from the supervisor to the supervised party,but also transfer information from the supervisor to the supervised party,while the supervised party feeds back to the supervising party in turn to achieve system optimization. |
PDF Full Text Request