| Online Lending recently has become a new Internet finance model, aiming at providing a match-making platform for borrower in need of money and lender with free money. Up to2014. there have been1,575lending platforms in China with a trading volume of252,80billion RMB. With the rapid development of online lending platform, there is also negative news of running off with money and conviction of illegal fund-raising. It results to the increasing demand of strengthening supervision of online lending platform. Now the regulation of online lending platform has been officially confirmed to be under the China Banking Regulatory Commission. Specific regulatory details are still to be expected.The signal transmitted by the current regulators shows that online lending platforms will be positioned as "information intermediaries" and forbidden from providing warranties and holding investors’ funds as credit intermediaries. However, a lot of financial products of the current online platform have included warranties with the platform acting as credit intermediaries. The positioning of "information intermediaries" will undoubtedly squeeze the development space of online lending platform. This paper holds that the loan contract is an important perspective to clear up the regulatory logic of online lending. The loan contract, like stock, bond or note, is not only the certificate of legal relationships, but also specific financial products. Therefore this paper analyzes the nature of loan contracts and finds out that the loan contracts can be divided into direct and indirect financing ones based on the theoretical division of direct and indirect financing. The regulation of online lending platform shall be based on the loan contract instead of the platform itself. It is not encouraged to "label" the online lending platform and thus limit their development space. Classified regulation towards the loan contract is a more reasonable method and will help promote development of online lending.This paper is divided into three parts:introduction, main body and conclusion.The introduction part mainly introduces the background of the prosperous online lending platform, its problems and responses to the problems. It also illustrates the reasons for choosing this topic and this paper’s innovations.The main body consists of three parts. The first part is about the business model of online lending platform, its existing research and the legal dilemma of the business model. The focus of this part lies in the current legal basis for online lending and its legal dilemma in civil law, administrative law and criminal law. The second part highlights that the core issue of the legal dilemma is the dual properties of online loan contract:direct financing and indirect financing. In short, part of the online loan contracts are indirect financing which are similar to banks loans while part of the online loan contracts are direct financing like securities. Because of the dual properties, online loan contract in the current financial regulation pattern based on the theoretical division of direct and indirect of financing is like square pegs in a round hole. This part also discusses how America and Japan define the online loan contract. The third part mainly talks about how China should regulate the online lending platforms with referring to experiences of America and Japan.The conclusion part presents the author’s research ideas as a whole and makes summary of the author’s opinion. |
PDF Full Text Request