From The Perspective Of Special Commercial Intermediary On The Civil Liability Of The Online Lending Platforms

As soon as The Online Lending Platform appeared in China,they developed sharply in number.At same time,due to the fact that the lag of legal supervision and the social credit system has not yet been established,the online lending industry has also accumulated a lot of industry risks.In addition,since 2016,China’s supervision to online lending has increased significantly.It is often seen that The Lending Platform close down,suspected of economic crime,difficult of withdrawal and the running of the operators.It led to in the number of civil cases on The Online Lending Platform.Therefore,how to resolve the dilemma of The Online Lending Platforms and provide legal support for its healthy development has become a concern of all parties.The reasonable definition of the legal nature of The Online Lending Platform is the premise for analyzing the civil obligations and responsibilities of online lending,and it is also the core of fairly tryl the online lending disputes.However,the current judicial interpretation and departmental regulations are biased towards the legal nature of The Online Lending Platform.The Supreme Court adopted the term"providing media services"in the judicial interpretation of the《Regulations on Several Issues Concerning the Application of Laws in Private Lending Cases》,It is not possible to fully explain the entire content of The Online Lending Platform,its connotation and extension are not clear,and there is no regulations for rights and obligations in the current contract law.《The Interim Measures for the Management of Business Activities of Internet Lending Information Intermediaries》defines The Online Lending Platform as "information mediation",which only reflects one aspect of the complex relationship of online lending,and cannot explain the characteristics of The Online Lending Platform in online lending.In addition,the theory of the definition of The Online Lending Platform is also widely discussed.There are various theories such as information agencies,financial institutions,commercialintermediaries,lenders’ agents,which cannot form a unified conclusion.Form the analysis of the characteristics of The Online Lending Platform,it’s suitable for defining the legal nature of The Online Lending Platform as a special commercial intermediator.On the one hand,comparing the differences between civil intermediary and commercial intermediary,commercial intermediary are more suitable with the intermediation characteristics of The Online Lending Platform.On the other hand,from the perspective of its financial functions,it is a financial service institution.In judicial practice,the obligations of The Online Lending Platform involved in legal dispute cases mainly include the obligation to inform the truth,the obligation of fund management,the obligation of protecting personal information and privacy,and the guarantee obligations agreed between The Online Lending Platform.The content of The Online Lending Platform’s obligation of trulyl disclosure is not only the literal meaning,except the basic information base on intermediaries,it also must carefully check the relevant information as a special commercial intermediator.The fund management obligation means that The Online Lending Platform is obliged to provide services for the registered borrower or lender to recharge,withdraw cash,transfer instructions,and inquire during the lending process.According to the Civil Law and the service agreements confirmed by the lender and borrower,The Online Lending Platform shall protect the personal information and personal privacy of registered members.When The Online Lending Platform guarantee for the right occurs on the platform or promise pledge of principal and interest,the online lending platform shall have a guarantee obligation.Because this principal and interest pledge can be regarded as a guarantee clause,as a commercial intermediary with the characteristics of a financial service institution,in the financial field,whether justice or theory,more and more people think it should be effective.In addition,from the perspective of Contract Law and Guarantee Law,the guarantee contract is valid and The Online Lending Platform also has the qualification of the guarantee.The disguised guarantee of the online lending platform means that it agrees with the lender that when the borrower doesn’t repaying the loan,The Online Lending Platform will repay it.This behavior should also be effective.As a commercial subject,such behavior of The Online Lending Platform is a normal commercial activity,and public power should define the boundary of its own intervention,and more should be left to the market.Moreover,from the perspective of the transfer of creditor’s rights and the conditional effective contract,the transfer of this creditor’s right should be effective.When The Online Lending Platform implements civil violations or breach of contract,it shall bear civil liability.The principle of liability for breach of contract liability shall be the principle of no fault.When the borrower and lender choose liability for tort,the principle of liability shall be the presumption fault liability;Behavior,damage results,causality,and tort liability should also be faulty.It bears the civil liability methods mainly including continuing to perform,returning property,paying liquidated damages,damages,eliminating influence and restoring reputation."’The burden of proof,the borrowers and lenders only need to prove that The Online Lending Platform’s defaults and they are subject to platform default.The initial liability for damage,if The Online Lending Platform cannot prove that it has a duty of exemption,it will be bear liability for breach of contract.On the civil and commercial legislation,on the one hand,starting from theContract Law.Distinguish between civil and commercial intermediation,clarify rights and obligations;clarify confidentiality obligations,protect personal information and personal privacy of both borrowers and lenders.On the other hand,starting from the Tort Liability Law,clarify the infringement of The Online Lending Platform’s the content,the principle of imputation,and the distribution of the burden of proof.In addition,because The Online Lending Platform has the characteristics of financial service institutions,it should be included in the scope of financial institutions and increase the category of "financial service institutions".