企业委托贷款制度的理论反思及其功能化构造

Theoretical Reflection and Functional Reconstruction of Enterprise Entrusted Loan System

企业委托贷款制度是企业融资创新与金融监管政策结合的产物,商业银行在委托贷款制度中的角色定位既有监管属性又有代理人特征。商业银行在金融法与民商法中的二元定位为委托贷款法律关系的厘清造成了混乱,不仅未能发挥更好的监督能效,而且引发了不容小觑的金融风险。因此,规制委托贷款需要从民商法与金融法结合视角,通过厘清委托贷款中以商业银行为核心的内外部法律关系,合理安排委托贷款法律关系各方权利格局,实现商业银行民事责任的归位与强化,以维护主体间利益平衡。推动委托贷款立法与司法规制系统适配,行政监管与金融司法协调互补,以促进委托贷款理论革新与制度优化,实现防范化解重大金融风险的制度目标。

The enterprise entrusted loan system,which serves as the non-financial agency intermediary business of commercial banks,reflects the innovation of new types of financial products.Enterprise entrusted loan system is the product of the combination of enterprise financing model and financial supervision policy in China.The role of commercial banks in the entrusted loan system is characterized by both the characteristics of supervision and the agent under the obligation of assistance and supervision.There are three fundamental causes for the spread of risks in entrusted loan business.First,the mismatch between rights and obligations of commercial banks.Second,the severed legal relationship of entrusted loans.Third,the fault line between financial supervision and commercial adjudication.This article aims to find answers to the above questions,so as to facilitate the adjustment of rights and duties and the functional adjustment of commercial banks,to achieve a balance of legal relationships and interests in the entrusted loan system,to protect the interests of relevant parties,and to provide some new ideas for preventing and mitigating major financial risks.On the one hand,the dual position of the commercial bank in financial law and civil law causes confusion in the legal relationship of entrusted loan.On the other hand,in practice,the commercial bank cannot play a better role in supervision due to the institutional cracks.Therefore,it is necessary to adopt the perspective of combining civil and commercial law and financial law to regulate entrusted loan.The legal relationship in entrusted loan is a special type of principal-agent legal relationship,which is internally manifested as a bilateral legal relationship of agency,and externally manifested as an open and indirect legal relationship of agency.The difference between the two relationships is essentially in the different aspects of the principal-agent legal relationship under the influence of transaction stages and financial regulations.The extent of risk assumption is taken as the measurement dimension,and the limit of civil liability of commercial banks is set according to the idea of“regulatory obligation”,“civil obligation”and“civil liability”.As the civil liability and administrative liability of commercial banks may coincide in the entrusted credit system,the scope of the liability of commercial banks shall be explored from the coordination approach of“civil liability”and“administrative liability”,so as to ensure that the functional roles of commercial banks are not shifted,overstepped or displaced,and to better play out the positive effects of the entrusted credit system.Efforts shall be made to promote the adjustment between legislation and judicial regulation in the entrusted loan system,and to coordinate and complement administrative regulation and financial justice,so as to promote theoretical innovation and system optimization for the system,and to achieve the institutional goals of preventing and mitigating material financial risks.