| The online lending institution originated in the UK and it is a new financial model that relies on the online institution to allow borrowers and lenders to transact on their own.The online lending institution is a typical representative of Internet finance,it is also an innovative model of Internet finance.The online lending market plays a very important role in financial markets.However,with the rapid development of the online lending market,many problems have been exposed.There are three guarantee models of online lending institution,the guarantee model of the guarantee from online lending institution,the guarantee model of the risk guarantee funds and the guarantee model of the third-party institutions,the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Private Lending Cases stipulate that the guarantee model of the guarantee from online lending institution and the guarantee model of the risk guarantee funds are valid,however,the Interim Measures for the Administration of the Business Activities of Online Lending Information Intermediary Institutions stipulates that the guarantee model of the guarantee from online lending institution and the guarantee model of the risk guarantee funds shall be prohibited.This has led to significant disputes over whether these two guarantee models are prohibited.The Document No.175 that issued by the regulator stipulates that the guarantee model of the third-party institutions should be prohibited,but this is in great conflict with the current status of practice.Based on this context,the paper studies whether these three guarantee models should be recognized.For a long time,due to the imperfect regulations of the online lending market,there are major disputes and conflicts between different legal provisions,and between legal provisions and practice.The development of the online lending market is very unhealthy and it seriously disrupts the normal order of China's financial market.Many lender's interests are damaged.Therefore,it is urgent to clarify these legal disputes related to online lending institution,especially whether the guarantee models of online lending institutions should be recognized,it is very important to regulate the online lending industry and promote the healthy development of the online lending industry.The problem studied in this thesis is: Among the three guarantee modes of online lending institutions,the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Private Lending Cases considers that the guarantee model of the guarantee from online lending institutions and the guarantee model of the risk guarantee funds are effective,and the Interim Measures for the Administration of the Business Activities of Online Lending Information Intermediary Institutions prohibits these two guarantee models,which leads to obvious controversy as to whether these two guarantee models should be recognized.The Document No.175 considers the guarantee model of the third-party institutions should be forbidden,which clearly conflicts with the practice.The core question of this thesis is whether these three guarantee models of online lending institutions should be recognized.The core point of the thesis is that the the guarantee model of the guarantee from online lending institutions and the guarantee model of the risk guarantee funds that established by online lending institutions should be prohibited,and the guarantee model of the risk guarantee funds that not established by online lending institutions and the guarantee model of the third-party institutions should be recognized.The first chapter of the thesis expounds the three guarantee models of online lending institution and the disputes in these three guarantee models,and then analyzes the reasons for the disputes in the guarantee models of online lending institutions.The main issue of the second chapter of the thesis is: whether the guarantee model of the guarantee from online lending institution should be recognized.The paper discusses the legal positioning of online lending institutions.By comparing the nature of information intermediary and credit intermediation,the author believes that the legal positioning of online lending institution as information intermediaries is more reasonable,so online lending institution has no obligation to provide lenders with guarantees.Then the thesis expounds the essence of the guarantee model of the guarantee from online lending institution and many risks may arise.Therefore,this guarantee model should be negated.While negating the platform direct guarantee model,the lender's ability of risk identification and tolerance should be strengthened,the credit information system should be constructed.The main issue of the third chapter of the thesis is whether the guarantee model of the risk guarantee funds should be recognized.The thesis elaborates the essence of the guarantee model of the risk guarantee funds that established by institution is that the institution provides guarantee to the lenders,which will generate many risks.Therefore,the guarantee model of the risk guarantee funds that established by institution should be prohibited.At the same time,due to the existence of many problems in China's online lending market,the guarantee model of the risk guarantee fund that not established by the institution has its legitimacy,and this model should be recognized.Later,the author studied some foreign risk guarantee funds and derived some enlightenment from it.It is necessary to prohibit the guarantee model of the risk guarantee funds that established by institution,and the risk guarantee funds that not established by institution should be allowed,and all online lending institutions should be up to the standard of the minimum capital requirements.At the same time,the government and online lending institutions should take steps to improve the information disclosure system to improve the system of China's risk guarantee funds.The main issue of the fourth chapter of the thesis is whether the guarantee model of the third-party institutions should be recognized.The author believes that the guarantee provided by the third-party institution to the lenders does not belong to the online lending institution's direct or disguised guarantee.This guarantee model does not break relevant laws,and the guarantee model of the third-party institutions has many positive effects.At the same time,the author believes that the guarantee model of the third-party institutions should be further improved by clarifying the guarantee obligations of the third-party institutions,prohibiting the affiliates and controlling the risks of the third-party institutions. |
PDF Full Text Request