| Internet lending originated from Mohammed Cygnus' s micro credit experiment.The Grammen Bank,founded in 1983,aims to grant small loans to rural poor people without collateral and help them out of poverty.This experiment also enabled the founder and the Grammen Bank to win the Nobel Peace Prize in 2006,which is regarded as the prototype of P2 P netwrok lending.Later,Zopa,which originated in the United Kingdom,really used Internet technology for micro-loans and pioneered the P2 P network lending model.The advent of the world's first P2 P net loan company has spread to the United States and Germany,France,Australia and other countries.From 2005 to 2007,the non-profit Kiva was established in the United States,and Prosper,the largest and most popular online lending platform in the world,and even Lending Club.German platform Smava was established in February 2007,which marked the rise of German online lending market.The French platform Lendopolis was established in 2014 and the largest Internet lending platform in Australia Society One was established in 2012.Ppdai,the first online lending platform in China was formally established in 2007.In the following years,the number of online lending platforms is still very small,and the overall development is later than that of foreign countries.Until 2010,some entrepreneurs began to test the water,such as China Rapid Finance,Renrendai,Yirendai,Esudai etc,successively set foot in the network lending,providing information intermediary service.In 2005,when promoting the Year of Micro,the United Nations first proposed the concept of inclusive finance,which was vigorously promoted by the World Bank.In the Decision of the Central Committee of the Communist Party of China on Several Issues Concerning Comprehensive Deepening Reform in 2013,it was clearly put forward that "developing inclusive finance,encouraging financial innovation and enriching financial market levels and products".The concept of "Internet plus Inclusive Finance" was put forward by the State Council on July 2015 Guiding Opinions on actively promoting the "Internet +" action.Then,following the guidance issued by the ten ministries and commissions of the people's Bank of China on the promotion of healthy development of Internet finance,the P2 P lending business was formally incorporated into the regulatory framework of the CBRC.This means that P2 P network lending,like banks,trusts,insurance and other financial institutions,accepts the supervision of the Banking Insurance Regulatory Commission and becomes a regular force in the financial industry.From 2012 to 2015,China's domestic P2 P network lending industry blowout in rapid development stage.By the end of 2015,there were 5121 online lending platforms in China,up 75.5% from 2014.During this period,the online lending platform in the operation and mode of operation is constantly changing and expanding rapidly.Although the Internet is the carrier of network lending,the essence of it is still private lending without the cloak of the Internet.Private lending used to occur between lenders and borrowers.Nowadays,the biggest difference of network lending is the participation of third-party intermediary platform.The transaction structure has changed fundamentally,which has resulted in the lending relationship between the borrowers and lenders who do not know each other,and the intermediary relationship based on the lending relationship with the platform.Even the vast majority of legal relationships transcend intermediaries and become complex.The net loan disputes arising therefrom are becoming more complex,and the problem of barbaric growth has also been exposed.In recent years,online loan disputes have been increasing year by year.Most lenders and borrowers themselves are not clear about the concept of Internet finance and the legal nature of online loan platform.It is also because of the rapid development of online lending that our country has not been clear about the nature of online loan,and there is no complete legislation yet.These are the main reasons for the continuous disputes.However,the current theoretical research mainly focuses on the supervision system,risk prevention and control,personal credit information system and other aspects of online lending,and the legal nature of online lending platform research results are few.Although the regulatory authorities have issued various policy documents,which directly characterize the online lending platform as an information intermediary,these policy documents only play a reference role in judicial practice judgment.The frequent occurrence of net loan disputes is in the final analysis of the legal nature of the platform and the definition of legal status.The previous private lending and net loan disputes have been regulated and adjusted by the general principles of civil law,the general principles of civil law,the contract law and the opinions of the Supreme People's Court on the trial of loan cases by the people's court.However,because Internet financial lending is a new field,when can the Supreme Court Opinion dispose of the net loan platform and when should it be held responsible? What specific responsibilities are not clear? In order to unify the direction and scale of judicial judgment and safeguard the legitimate rights and interests of both parties to the contract,Article 22 of the Supreme People's Court's Provisions on Several Questions Concerning the Application of Law in the Trial of Civil Lending Cases(hereinafter referred to as "New Judicial Interpretation of Civil Lending")which came into effect on September 1,2015,should be accepted for the first time when the legal relationship between intermediary and guarantee is involved in the online lendi The civil liability of the parties is clearly stipulated as follows: "The borrowers and lenders form a lending relationship through the network lending platform.The providers of the network lending platform only provide media services.The people's court will not support the parties who request them to assume the guarantee liability." In addition,the explanation also gives an exceptional case: "If the provider of the network lending platform expressly or has other evidence to prove that it guarantees the loan through the webpage,advertisement or other media,and the lender requests the provider of the network lending platform to undertake the guarantee liability,the people's court shall support it." Obviously,the Supreme Court has given a tolerant attitude to the credit enhancement service adopted by the online lending platform,whose purpose is also to protect the creditor's rights and interests.However,the expression of the law only stays on the repayment responsibility under the condition of providing media services,which is equivalent to the qualitative analysis of the legal nature of Internet credit.So is online lending platform the media,intermediaries,intermediaries,guarantors or assignees of creditor's rights? How to identify the other functions and legal relationships of the platform in the process of lending?Starting with the interpretation of Article 22 of the new Judicial Interpretation of Civil Lending,this paper expects to clarify the current judicial judgment ideas and the nature of online lending,and to put forward opinions on whether there may be other legal nature of the current online lending platform through in-depth analysis and interpretation of the judicial interpretation,relying on actual cases.This paper is divided into three chapters.The first chapter focuses on the main types of operation of online lending platforms in China.The first section introduces the pure intermediary online lending platforms.The second section introduces the online lending platforms of guarantee mode and creditor's rights transfer mode under the compound intermediary mode.The third section briefly introduces the non-profit online lending platforms,but this type of platform is not the main concern of this paper.We should not go deep into the types.The second chapter begins to analyze Article 22 of the new Judicial Interpretation of Civil Lending.The first section focuses on Article 22,paragraph 1,and interprets the thinking of judicial decisions through two specific cases,so as to further analyze the legal nature of the online lending platform.The second section focuses on Article 22,paragraph 2,and further analyses the online lending platform through two specific cases.The third chapter is based on the above analysis around the judicial interpretation,to further analyze the legal nature of the current online lending platform in China,and put forward the author's personal views. |
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