Editor's Note: The Internet leveled the world, is changing the rules of the game of financial activities, which has emerged in 2014. Followed, with the Internet all kinds of financial-related disputes will become a hot spot for the people quotient trial. The author reviews the various types of litigation case system, from the perspective of judicial practice P2P network loan transfer credit risk fund, independent guarantees and counter-guarantees, risk buyout nature, impersonation validity of the contract signed on behalf of the Borrower in this Gold finds interest and liquidated damages and other issues in-depth analysis.
2014 P2P network quickly jump red become hot words. Generally believed, convenient and efficient P2P transactions, reduce borrowing costs, accelerate financing for the construction of multi-level capital market is important. According to statistics, at present, the country has more than two thousand P2P platform, totaled three hundred billion yuan deal size. P2P networks loans, namely credit point, referring to loans between individuals and individuals through the network platform. P2P networks loans in the rapid development has also exposed a lot of problems, leading to investor (lender) can not recover principal and interest, giving rise to litigation. In this paper, analysis of problem loans in the area of P2P networks involved in litigation.
First, the debt transfer
P2P is the essence of private lending, but its different from traditional private lending. Traditional folk lending by the lender and the borrower directly loan agreement reached in the middle usually no third-party involvement. P2P lenders and borrowers of loan agreement reached by the middle of the network platform. Lenders and borrowers are borrowing legal relations; platform and intermediary contract signed by both parties, is intervening legal relationship. If the lenders and the borrower signed a loan agreement, the platform also join them as a party body, clearly stated that if the borrower is unable to repay the debt, the lender's principal and interest payment platform, assignment of claims to the platform. So this time, the equivalent of a credit transfer contract embedded in the loan contract. When the normal performance of the loan contract, the consequences of assignment of claims does not occur. When a borrower is unable to repay the debt, the transfer of claims to fulfill the contract began to enter the program. Thus, the loan contract and the transfer of claims, although at the same time signing the contract, but after a performance of the contract before a contract can not fulfill the premise of the conditions attached to the entry into force equivalent situation. Contract Law Article 79 stipulates that nature may not be transferred except in accordance with the contract, the agreement between the parties may not be transferred, in accordance with the law of the case may not be transferred outside creditor rights can transfer all or part of the contract to a third party. Article 80 stipulates that the transfer of the rights of the creditor shall notify the debtor. Therefore, lenders can legally sign a contract with a third transfer of claims, many platforms have also launched to assist the borrower's credit transfer services to facilitate capital flows. In this case, the third party as a creditor of the new loan agreement, the borrower does not fulfill the contract can sue on their own behalf. Platform itself the assignee of a debt is just a special case. Although the platform as a third party may become generalized claims assignee, but some experts believe that from a regulatory point of view should not become a creditor assignee platform, it should not become a party to the main loan agreement shall only be formed as a mediator and the parties intervening legal relationship. Because when the borrower can not repay the debt platform assignee lender's debt, equivalent platform creditors implicit guarantee is not conducive to risk isolation. If the platform claims transferee serious debt default, causing the platform bankruptcy, it would create systemic risk, affecting overall investor interest in the platform.
Second, the risk fund
In practice, in addition to the loan contract embedded in the form of the contract of assignment of claims, there is a platform and borrowing sides agreed that if the debtor does not fulfill the repayment schedule, the platform to the risk fund (some platforms known as risk reserve) pay creditors The principal and interest. Risk fund comes from fees charged to the debtor internet. Such reimbursement is limited by reimbursement and the pro rata payment limit rules, may not be entirely full principal and interest payment, depending on the situation is different. In the same period reserve account balance sufficient in the case, it may be paid in full; the same period in the reserve account balance is not sufficient in the case, may be just limited reimbursement. This law guarantees general security on a different meaning, the platform does not assume full security responsibility, but the relative degree of risk compensation. Risk platforms fund belongs platform dominance, is the platform of the contract in accordance with the management fees charged to the borrower, the platform is the actual owner. After its risk fund to pay off creditors, has made the rights of creditors, the debtor can recover, then the platform becomes a plaintiff cases. This involves the risk of fund regulatory issues. Risk guarantee fund with a certain degree of nature, whether they should set up a separate account, run by the relevant authorities for regulatory and third-party managed funds, in order to make use of funds more transparent and standardized.
