文献出处：Ricardo Correa. The Study of Private Lending Risks [J]. Journal of Banking & Finance, 2014，26(3): 15-26.
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原文
The Study of Private Lending Risks
Ricardo Correa
Abstract
Private lending，with its various form and characteristics，has unique risks． Thus，to ensure the effectiveness，systematic ness and completeness of legal regulations，the legal regulations on private lending risks should be carried out through the categorization of risks． Based on the re-evaluation of researching method，the way to legal regulations on private risks divides the private lending risks into subject risks and operational risks． It also asks to trace the origin of private lending risks and explore the legal regulations on private lending risks，i． e．，registration according to different genres，classification guidance of private lending as well as the coupling of registration and classification guidance． Finally，the way to legal regulations on private risks seeks to construct a comprehensive system to regulate the private lending．
Key words: private lending; categorization of risks; legal regulations
1 The typical reflection of folk lending risk typing method
Risk duality, uncertainty and exposure, suggests that the risk is the contradiction between objective reality and subjective expected deviating relationship, which induced by the uncertainty of objective existence is contrary to expectation of opportunities and possibilities. In view of the subjective understanding on the incompleteness of bounded rationality and objective information, risk regulation (risk regulation will require the \should be to seek the breakthrough of
methodology to make up for congenital deficiency of subjective and objective, typed research method is the optimal choice. The reason has this function, because \method introduced broke the\binary opposition, and quickly became a mediation\that connects the two. To be specific, typed has the function of abstract concrete, concrete abstraction can get through the subjective and objective \and subjective, thus effectively regulation risk. Again, folk lending the type is various, characterization, its hidden risks also reveals the uniqueness, therefore, the legal regulating of the private lending risk need to risk types into a cornerstone, to ensure that the risk system, completeness and effectiveness of regulation.
From the point of the present study, many scholars have used the typed methods was carried out on the private lending risks., for example, many scholars believe that the formal finance is the deepening development of folk lending and the result of regulation, investigate its root, in monetary financing ways, there were little difference. Therefore, typed on the private lending risks in the process of division, can draw lessons from the regulation of Basel 2, divide the risks of private lending for credit risk, operational risk, market risk and strategic risk types; Also have some scholars based on legal issues existing in the private lending, private lending risks can be divided into risk of interest rate risk, identity and USES risk; And scholars from the private law and public law level typed divides, its risk is divided into public law and private law risk; From the financial system, financial regulation and financial regulation to study the three aspects and so on. In a larger extent, the above all kinds of risk classification method is more based on the characteristics of the financial industry. It is important to note, however, different sectors, disciplines have different ways of thinking, focus and value choice, to a certain extent, the risk of the financial industry classification standard, management standard is not completely accord with the requirement of risk been regulated in law. Typical folk lending typed partition method, most of them from the Angle of finance or the financial sector risk, more focused on the specific risks, although have typed in the name of, but no reality of the typing, which is difficult to realize effective regulation of private lending risks.
In view of the financial sector risk types of classification method, this article only in Basel on the division of risk types, for example, to prove the risk classification from the viewpoint of illegal learning bring risk regulation of the troubles and problems. From the perspective of risk regulation, the Basel agreement \be divided into credit risk, market risk, operational risk, legal risk, reputation risk and liquidity risk six types. By many scholars, however, this kind of classification has a larger question, they think that operational risks include legal risks, and to some extent, liquidity risk, market risk, including further, many people think of sensitivity of reputation risk. Therefore, we should put risk is divided into credit risk, market risk and operation risk three types. First of all, from the point of view of law, the law emphasizes more on non-market risk regulation. Therefore, the market risk can be ruled out in this paper. Followed by questions about operation risk definition. In the new Basel capital accord, the original definition of operational risk is the risk other than some of the market risk and credit risk, this definition method is fuzzy, lack of pertinence. Since the operation risk is the risk of market risk and credit risk, the inevitable requirement of market risk and credit risk definition must be clear. Different institutions to credit risk and market risk, however, there are large difference between the range of designated, it will further increase the uncertainty of operating risk. Take a step back, even if the definition of operational risk within the financial institutions is certain, however \different in the regulatory definition of operating risks (regulatory definition might be more widely)\a sense, in real life for breach of promise is the symbolization of credit risk characterization, at the same time, the operation risk is also a manifestation of the person's behavior, both can be reflected in the behavior, and both can be called behavioral risk. So, can will be the realization risk, operation risk and credit risk --, under the general of behavioral risk types, thus realize the effective regulation of risk. It is obvious that the Basel agreement typed yes will be divided into the risk regulation institutions for risk regulation and the introduction of the legislative branch of risk regulation. Of course, I do not deny that the Basel agreement typed on the risk classification of finance, perhaps for the internal control the risks of financial
institutions, meaning is very profound. However, from the perspective of law, finance or the financial sector to typed the risks of private lending division standard or method for risk regulation is slightly inferior. Because of this, the author will use legal thinking methods of private lending risks are typed, and regulation, the first use of law on the theory of subjective and objective relationship to private lending risk is divided into main risk and risk behavior of two types, and then build the folk lending subject classification difference registration and classification guidance regulation coupling double nested risk regulation mechanism, to effectively regulate the folk lending subject risk and the risk.
2 The standard of law under the view of folk lending risk typed and type analysis
As mentioned above, since the legal regulating of the private lending risk from level typed analysis of law, then it is necessary to study how to make typing? Should be typed as the standard with what? Typical of the law \relationship between subject and object\analysis method is the best choice. From the law of \relationship between subject and object\risk deconstruction as the main body and object risk, then combined the subject and object risk considerations, its specific performance as follows: first, the law is clear right and obligation is the most fundamental, most the core elements of the law and the rights and obligations are to be subject to or not to take to implement the action, and based on \equal to its statements and expressions of a series of behavior, and behavior is indispensable to the risk analysis blindly elements, furthermore, is the inner meaning of external expression and implementation, lose the behavior of the subject must be pale, or even non-existent, reality subject cannot little.Second, the legal relationship including the subject, object, content, behavior and intellectual property, etc.) and three aspects of content, has been holding the legal thinking of the \between subject and object\the legal research, stressed without there is no such thing as the subject and object of legal norms; Will the relationship between the legal relationship as the plural subject
and behavior. Based on the two points, the author divided the private lending risk as the main body of risk and risk behavior of two types, and within the framework of private lending risk type deliberative contents and the causes of private lending risks, and then realizes the private lending risk typed legal regulation.
Folk lending risks.” Identity is vital for the judgment of the risk, the risk of identity different may lead to the nature of the risk, the risk liability is different, even decided to risk existence\in private lending activities, behavior subjects include natural persons, legal persons and other organizations, and in the different lending activities, different main body plays a different role, can be either borrowers and lenders, yes key is an intermediary, and risk Bear will also vary. In terms of our country folk lending, folk lending subject risk mainly refers to the folk lending legal relationship, because the people borrowing between main body and lead to the risk of inadequate, the folk lending subject because of the lack of legal business licenses is engaged in the business of lending and deposit-taking business, with a legal qualification but beyond the scope of business, etc., and the possibility of adverse legal consequence. Its main performance for private lending intermediary wind risks and lending between non-financial companies subject two types of risk.
Private lending intermediary main risk Firstly, the natural type body discomfort, the risk of private lending the middlemen. Does not involve the third person of the civil lending between natural person is allowed by law, but now most folk lending by the familiar people borrowing, lending evolved into between strangers who type natural folk lending agent generates, and informal lending natural intermediary toward specialization. Among them, a lot of natural person no intermediaries to limit its business on the general introduction of lending or borrowing for range, but in the absence of fixed in accordance with the procedures to apply for legal license, illegal engaged in absorb deposits and issue loans and other financial business, easy to cause the inadequate subject risk problems. Second, the type of legal person private lending intermediary body risk. In real practice, folk lending middleman present institutions, the trend of, however, the current laws and regulations have not been to effectively confirm the legal status of private lending agencies, the rights and obligations is also a
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