浅析合会法律属性及其风险防控

Brief Analysis of the Law Attribute and Risk Control of ROSCA

合会作为一种民间金融形式,既有济急、互助、储蓄的正面价值,又有倒会的风险。倒会的风险多种多样,但究其根本,在于民间金融自律机制无法预防风险的发生,又缺少必要的法律规制。合会不是组织,而是合同,其法律属性的学说有:消费借贷说、消费借贷说与保证之混合说、合伙说、类似分期付款买卖之有偿契约说、无名契约说、有名契约说。对其风险防控进行立法设计包括:合会性质确定之立法、会首义务设计、会员的权利义务设计、合会的监管。

ROSCA as one of the folk financial form, has not only the emergency, cooperation, deposit value, but also the risk of bankrupcy. Bankrupting has many kinds of risk, but basically, it＇s because the folk financial self-discipline mechanism cannot prevent risk occurrence, and the lackness of necessary laws. ROSCA is not an organization, but a contract. Its legal attribute theory includes：the theory of load for consumption ,the mixed theory of load for consumption and guarantee ,the theory of partnership ,the theory of onerous contract similar with installment payment,the theory of innominate contract ,the theory of nominate contract. The legislative design to its risk prevention and control includes： the legislation of the ROSCA nature determination ,the design of the liability to the foreman in a ROSCA ,the design of the rights to the members in a ROSCA ,the supervision of the ROSCA.