| With the rise of moral hazard, adverse selection caused by information asymmetry and other conflicts, as well as the rise of one-off game and anonymous trading theory, financial institutions’ requirements to borrowers are gradually increasing. Small and medium-sized enterprises and individuals with lower credit status or lacking of mortgage or guarantee are increasingly rejected by financing institutions. However, the peer to peer lending which relies on internet media was born at the right moment. With its simple and convenient grass-roots characteristics, P2 P was quickly praised highly by private lending institutions.However, due to the low barrier to entry this industry, the unsound credit system, lacking of laws and other reasons, the development of P2 P gradually deviates from its initial shape and forms many Chinese style lending models. Some platforms departing from its sole role as an medium, promise high financial returns to the lenders, and even worse, they use internet and P2 P as cover to engage in illegal fund-raising activity and financial fraud.P2P market is small and weak in our country and its operating model is also controversial. In this paper, it is believed that the legal risk in P2 P internet lending is showed in the following phases: credit check before lending, fund flow during the lending, overdue collection to the borrower after the lending finished. Basing on the above three phases and starting from the specific internet lending patterns home and abroad, this paper studies the P2 P lending model through analyzing the typical lending platforms under different lending models, mainly about credit check,fund flow method, overdue collection method and platform responsibility. And then it analyzes the legal relation in the whole P2 P model and their corresponding legal issues. On the basis of the analysis of the lending model and legal relation, this paper, from the perspectives of credit check, fund flow method, overdue collection method respectively analyzes the possible legal risks and puts forward feasible measures to reduce the risks. Through studying the main model and legal relation of P2 P, this paper analyzes the risk in P2 P and combing with P2 P operation models home and broad offers suggestions to optimize P2 P in our country.This paper consists of the following parts:Part I: Introducing P2 P operation model home and abroad. About foreign lending model I think they are mainly lending without guarantee or mortgage and lending with guarantee but without mortgage. Under the no mortgage and no guarantee model, I choose to analyze Prosper platform from the perspectives of lending method, credit check method, fund flow method, overdue collection and platform responsibility. To the model with guarantee but no mortgage, I choose Zopa as an example to analyze from the above mentioned five perspectives. For the lending models in our country, I think there are mainly model without mortgage or guarantee, online model with guarantee but without mortgage, offline model with guarantee but without mortgage, and model with both mortgage and guarantee.Part II: Starting from the existing laws, regulations and actual problems, I divide our country’s existing lending methods into lending contract relation, brokerage contract relation, guarantee contract relation, agency relation, assignment of debt relation, mortgage contract relation and combing with judicial practice, analyze the possible existing questions and risk under each relation. About lending contract, I think its main problem is the legality of lending among enterprises on the platform and the legal issues about electronic contract and electronic signature. For brokerage contract, the problem is that the platform as the broker should examine the authenticity of the borrower to what extent. For guarantee contract, I mainly analyze its legality and practicability. For assignment of debt relation, I mainly analyze its legality and the necessity of informing the debtor. The analysis about mortgage contract is mostly on the parties of the contract should not be the platform and the borrower, but the lender and borrower according to the subordination character of the mortgage contract.Part III: From the perspectives of platform and borrower it analyzes the legal risk of the P2 P model in our country, and combined with the specific model of P2 P, analyzes the potential risk from its credit check, fund flow and bad debt recovery. About the credit check, I think the main problem is lacking unified evaluation system and security mechanism about the investor information. For fund flow, I think they are the risk of capital source and its use, the risk of capital confusion, the risk of insufficient isolation of escrow Account. The risk of capital confusion reflect as the lender transfer his money to the platform by recharge his account at the platform, so the sedimentary money that hasn’t been transferred to the borrower’s account, and the principal and interest returned by the borrower but hasn’t been transferred to the lender’s account will be controlled by the platform. There is a possible that the platform will misappropriate the money and also engage in the risk of illegal fund-raising. For the risk of escrow account, it lies in that some platforms use escrow account as a guise, and they still has ownership of the money in the account. From the perspective that there will be overdue payment from the borrower, I think the problem is that the collection method is limited and there is on specific laws and regulations about debt recovery. At present, the main debt recovery method is online recovery, or making phone calls. But these methods are not very effective and weak in compulsory execution force. At most time, it largely depends on the borrower’s desire to return the money or not. It is also the reason why the rate of bad debt is high in internet platform.Part Ⅳ:By learning the lending models of America and Britain, from the perspectives of the platform and regulation, it puts forwards risk countermeasures against the existing risks in our country’s P2 P industry. To the platform, they should make risk prevention from the aspects of introducing third party credit reporting agency, protecting the safety of customer information, innovating risk control model, ensuring the rights of lender, realizing completely funds trusteeship, realizing bankruptcy isolation of the platform, using representative action to help the lender with relief difficulty. About the third party credit reporting agency, I suggest to find impartial agency, and entrust it to offer and disclose borrower’s credit information to the platform. For the aspect of innovating risk control model and protecting lender’s rights, I think it is possible to establish a joint guarantee loan model. As to realizing completely funds trusteeship I think it is necessary to require all the platforms to realize trusteeship of the platform funds. At the same time, the platform can protect the rights of the investor through representative action. To the regulation level, first I think we should improve laws and regulations in the field of internet especially law of electronic signature to protect the procedure interest of the investor. Second, we shall promote the data of central bank to dock with the platform, and compulsively require the platform should not disclose their accumulated customer information to central bank unless being authorized by the customers, which should also be regarded as a precondition to get the credit information from the central bank. |
