摘要
The interest rate ceiling control has always been a predicament that puzzles the legislation and judiciary system in China and other countries.There is the infrequency of reversal between civil law system and common law system:the former authorizes judges to subjectively determine whether the interest rate stipulated in the contract is suitable or not,but the latter has always relied on written legislation to set the interest rate ceiling.Religion and morality-based Anglo-American law interest rate ceiling control once broke down at the end of the 20th Century,but behavioral economics has re-founded a new justified basis for‘financial consumer protection’in the new century and led to legislation being changed.This historical change is quite similar to what happened in China,which can provide references for us.The interest rate ceiling legislation in China should take the financial consumer protection as its core goal,and separate the institutions on legislation and enforcement of interest rate regulations,then gradually form a different control system of business loan and consumption loan,give judges discretion on interest rate adjustment in case,fill in the gap between civil and criminal liability by independent forfeiture procedures.
借贷利率上限管制一直是困扰我国立法与司法的双重难题。两大法系对此呈现出一种颇为奇特的法源反转现象:大陆法系授权法官主观裁量合同约定的利率适合与否,英美法系则一直依靠成文立法限制利率上限。以宗教与道德为基础的英美法系利率上限管制曾一度在20世纪末分崩离析,但行为经济学在新世纪又为管制重新找到了“金融消费者保护”这一新的正当性基础,并导致立法随之改变。这一历史变迁与我国既有制度路径颇为相似,可为我国下一步的相关立法提供镜鉴。我国未来利率上限立法的精细化设计应以保护金融消费者为核心目标,分离利率管制上限确定权和执行权,逐步形成生产/消费二元区分管制体系,赋予法官个案利率自由裁量的空间,并通过独立罚没程序弥补民事和刑事责任之间的空白。
作者
Zhao Haicheg
Song Yang
赵海程;宋洋(School of Public Administration of Southwestern University of Finance and Economics;Law School of Southwestern University of Finance and Economics)
