Study On The Effectiveness Of Professional Lenders' Loan Contracts

As a form of informal finance,private lending has helped solve some social financing needs and promoted better intertemporal allocation of funds.At the same time,however,private lending has also spawned a group of professional lenders with a common practice of lending.The problem of usury and even crime has grown and become increasingly prominent,which has adversely affected the stability of the formal financial order and even the social order.In order to prevent this bad phenomenon from spreading,the <Minutes of the Civil and Commercial Trial Work Conference of the National Court>promulgated regulations that,in accordance with the <Contract Law>,professional lending behaviors should be deemed invalid due to violations of laws such as the Banking Supervision and Administration Law.However,there are actually contrary opinions that professional lenders' loan contracts should not be deemed to be invalid in law.There are few systematic professional studies on the validity determination of professional lenders' loan contracts.In view of this,the author intends to respect the issue of the validity of the loan contract of professional lenders in order to seek advice.The article structure is as follows:The beginning of the article briefly states the cause of the problem of professional lenders and the difficulty of trial,as well as China's two views on the effectiveness of professional lenders' loan contracts(Part I,background of the problem).The main content of the article is divided into practical part and theoretical part,corresponding to the second and third parts of the article.In order to ensure the conformity of the article and practice,the practical status of the professional lenders case is the starting point and research basis of the entire article(Part II,the description of the practical status).The author examines the relevant standards of professional lenders and the referee's standpoint separately,and finds that: first,after the introduction of the Nine Minutes,the standards for professional lenders have only focused on the "professional lenders" group as the object of review in the past Directly denying the effectiveness of its loan contract,the attitude changed suddenly.Second,after the introduction of the Jiu Min Minutes,some courts have quoted the Jiu Min Minutes,but still adopted the previous standards for the identification of professional lenders by the courts.Third,the Nine Minutes found that the loan contracts signed by professional lenders were invalid,and that the effectiveness of behavior was determined by the identity of the subject,which is the embodiment of the "subject control" thinking.The sudden changes in the above-mentioned professional lenders 'norms and the court's circumvention practices are manifestations of the "invalidity theory" of professional lenders' loan contracts that is difficult to undertake with practice.In the theoretical part of the article(Part III,Identification of Mandatory Provisions),the issue of "the effectiveness of professional lenders' loan contracts" is theoretically studied.The "invalidity theory" believes that the loan contract of a professional lender violates Article 19 of the Banking Supervision and Administration Law-in accordance with Article 52,Item 5 of the Contract Law,shall be invalid.However,"effectiveness" holds that Article 19 of the "Banking Supervision and Administration Law" is not the "mandatory provision" referred to in Item 5 of Article 52 of the Contract Law.It can be seen that the identification of the "mandatory provisions" in Article 52 of the Contract Law is the core of theoretical research.Examining the evolution of relevant legal regulations and domestic and foreign doctrines,we can find that at this stage,the general opinion holds that the nature of mandatory regulations should be judged by comprehensive factors.Comprehensive consideration of the regulatory objects,the types of legal interests protected,the legal consequences of illegal activities and transaction security protection in Article 19 of the Banking Supervision and Administration Law,violation of Article 19 of the Banking Supervision and Administration Law Legal consequences of invalid loan contracts.It is expected that this paper can provide ideas for seeking a reasonable solution to the problem of determining the validity of loan contracts by professional lenders.