民间借贷的风险控制 一个制度变迁的视角

Risk Control of Private Lending A View of Evolution of Legal System

在控制违约风险和解决信息不对称方面,中国古代关于民间借贷的法律制度体现出高度的制度理性,但以利率管制为核心的打压高利贷的各种举措却因招致市场反弹而屡屡受挫。民间借贷的制度变迁在很大程度上由科技进步和经济增长联手推进,金融机构占据了消费性借贷的大部分市场,社会保障和商业保险分担甚至替代了借贷市场的传统避险功能,贷方资信调查能力和资金监管能力的提高减轻了债务追讨对暴力强制的依赖,笞杖之刑以及"强牵财物"之类的逼债手段可以弃之不用,"役身折酬"也被高价值的抵押或质押取而代之。现代借贷制度因此表现出人性化和去暴力化的倾向。

In terms of controlling default risks and handling information asymmetry,regulations on private lending adopted in the ancient Chinese legal system were highly rational.However,crackdowns on usuries with interest rate control at its core were often met with frustration due to adverse market reactions.System evolution in private lending,to a large degree,is the result of technological advancement coupled with economic growth.Financial institutions dominate the consumption loan market with social security and business insurance sharing in or even substituting for the conventional hedging functions of the loan market.Improvements on credit checks and fund supervision by the creditors reduced the reliance on violence for debt recovery.Forceful debt dunning through,for example,flogging and forceful seizing of properties could be renounced whereas compulsory labor was also replaced by collaterals and pledges that were higher in value,hence the tendency towards a more humanized and less violent modern lending system.