P2P网络借贷与非法集资:关系、根源及规制

An Analysis of P2P Network Loan and Illegal Fund-raising

P2P网贷平台近年来在我国的迅速发展,使其成为互联网金融的重要组成部分。其运营模式也从单纯的信息中介,逐渐演化成债权转让、抵押和信贷资产证券化等运营模式。虽然P2P网贷平台由于金融创新和政策套利的运营模式,使其能更好地满足小贷市场,但是近期出现的"e租宝"、"大大集团"和"中晋系"等案件,也暴露了异化后的P2P网贷平台与非法集资之间的潜在关系。依据我国《刑法》及其他法规对非法集资的规定,异化后的债权转让、信贷资产证券化模式都从不同程度上触犯了非法集资罪。建议按照P2P网贷平台的性质将债权转让和信贷资产证券化模式划入证券监管体系,并修改当前的相关法规引导这两种模式融入证券体系;将抵押模式划入银行业监管体系,并予以监管。而对于单纯的信息中介模式,划入银行业监管体系。同时,在监管的前提下也鼓励其继续创新。

Developing rapidly in China in recent years, P2P network loan platform has become an important component part of Internet finance, and its operation modes have evolved gradually from pure information intermediary to creditor＇ s right transfer, mortgage, credit asset securitization and so on. Although the P2P alienated operation modes based on financial innovation and policy arbitrage satisfy the needs of small loan markets, the recent ＂E rent treasure＂ and ＂Dada Group＂ cases expose the potential relationship between the alienated P2P network loan platform and illegal fund-raising. According to China ＂ Criminal Law＂ and other laws and regulations concerning illegal fund-raising, the alienated creditor＇ s right transfer and credit asset securitization modes violate the crime of illegal fund-raising to a varying degree. Therefore, it is suggested that the creditor＇ s right transfer and credit asset securitization modes be included in the securities supervision system according to the nature of P2P platforms; the relevant laws be modified to guide these two models into the securities system; the mortgage mode be included into banking supervision system; and that the pure information intermediary modes be included into banking supervision system for being supervised and encouraged to make further innovation.