Incentive legal regulation of private lending Yue Caishen is also the key to the legal governance of private lending. For a long time, our country’s laws mainly relied on the prohibition to limit and crack down on order-controlled legal governance models and standardized private lending practices. These traditional legal regulation methods cannot be implemented under market economy conditions. Effectively guide the optimization of private capital allocation, it is also difficult to prevent the risk of private lending.

There is a clear failure, which weakens the effect of private lending governance. From the analysis of the overall structure of the legal system, the regulation of private lending must face the reality of the development of private lending in China and fully consider the dual nature of its information constraints. Change the traditional thinking of legal management of private lending. Introduce the theoretical paradigm of incentive regulation. In order to establish a multi-party cooperation game mechanism under the condition of asymmetric information, we choose the price limit information protection for competitive tax relief in market access regions. Incentive regulation tools such as subject identity conversion. Optimize legal system design and build differentiation. The diversity of regulatory mechanisms, the formation of a scientific legal incentive structure entered the 21st century with the development of China's social economy and the adjustment of the financial system structure. Private lending has become increasingly active. Gradually go toward organizational and specialization across regions and professionalization; while expanding financing channels and promoting economic development, private lending has become increasingly risk-transmissive and diffuse. Affecting the country's macro-control resources Allocation of resources to industry Development of regional economic security and social stability in recent years. Affected by the financial crisis and macro-control. A large number of private loan cases broke out in Wenzhou Erdos and other places. A large number of companies are involved. Especially SMEs. Seriously affect the local economic development and social stability. Objectively reflects the harm of private lending risk under the conditions of market economy. With the continuous expansion of China's private lending scale and scope. The legal regulation focuses on the legal mechanism of private lending and illegal capital raising risk prevention in the major courses of philosophy science of the Ministry of Education. 12.73. The difficulties and outlets of private usury regulation under the Ministry of Education humanities and social science research projects are based on usury legislation experience and practice in China. The study of 127.8291 staged results was funded by the funds of the Wenzhou University Institute of Finance and the Chongqing Liangjiang Scholars Special Program.

The point is no longer simply to protect the order of transactions and reduce the risk of default. It is to prevent and control the potential regional financial risks and social public risks. Since the reform and opening up, in order to effectively prevent and resolve the risks that private lending can bring. The state has continued to govern private financing activities and successively issued more than one legal document regulating private lending. Repeated rectification and clean-up of illegal financing activities In January 319, the State Council issued a number of documents, announcing the unification of the National Rural Cooperation Foundation. Private financing is severely suppressed. In recent years, there have been frequent non-cooperative games of private lending risk. It is difficult to play a role in effectively regulating and promoting the development of private lending. The financial crisis that broke out in the United States in 2008 and 8 triggered another new question about private lending. That is, how to effectively supervise shadow banking. In our current financial system. Although formal financial markets and non-governmental financial markets have a certain degree of division. However, there is a complex relationship between bank credit local government debt and private lending. Bank funds flow into the private lending market and local government financing platforms through various means. Become part of the shadow bank. Various forms of shadow banking are not regulated by law. Also intertwined with traditional banks. Has a strong risk diffusion and contagion.

Increased the complexity of private lending governance. Regulating non-governmental finances has also become the basis for preventing shadow banking risks. , in the case of multiple financial risks staggered. How to effectively regulate and promote the development of private lending has not only become a major lesson in the improvement of China’s financial legal system. Moreover, it has become the focus of theoretical debate. This paper focuses on the optimization design of the legal system. Based on the Special Information Constraints of China's Private Lending. This paper discusses the improvement of the core mechanism and regulatory tools of the theoretical paradigm regulation method for constructing private lending incentive legal regulation.

Legal Regulations under Special Information Constraints The precondition for the regulation of private lending laws is that regulatory agencies need a lot of information to supervise the implementation of laws and regulations. However, the special information constraints of private lending have not been well integrated into the design of our legal system so far. The implementation not only causes the failure of the traditional legal regulation but also raises the paradox of the legal regulation. The traditional legal regulation theory under the condition of asymmetric information holds that. The effect of government intervention largely depends on whether the regulatory policy reduces or aggravates the incompleteness of market information. China's current private lending legal regulation is a traditional command and control type and is also called a repressive type. Its design and implementation did not consider the lack of information constraints to overcome the system of asymmetric information on private lending. Xu Junhui The development of Chinese-style shadow banking and its impact on the financing of SMEs, Financial Science 2, 1;

i Jiang Xuchao and Ding Changfeng Analysis of Category Comparison of Private Finance Theory and Institutional Change, Financial Studies 2004 S. Daniel, F. Spbber Control and Marketing, Yu Hui et al., Shanghai Shanghai Joint Publishing Shanghai People's Publishing House, 1999, p. 98. ! Daniel. Spbbo control and market, page layout. Information asymmetry between lending entities causes market failure. It hides the credit risk that the market can hardly solve.

The command and control relationship between regulatory institutions and lending entities has aggravated the information asymmetry of regulation. In order to evade legal control, private lending will use the advantage of trading information to go underground. This led to inefficient or even inefficient legal regulation. Accumulation and concealment of financial risks and social risks that are difficult for regulators to discover. 1 year and 2 years. The National People's Congress State Council Supreme People's Court People's Bank and other agencies have issued more than one legal document on private lending. These documents lack incentives and incentives to resolve information asymmetries. The implementation effect is not satisfactory. Statistics from the Supreme Court show that from 2005 to June 21, the total number of cases of illegal fundraising in China exceeded 10,000. The amount involved was more than 1,000 billion yuan, and the number of funds raised each year was about 2,000 and the amount of funds raised was 20 billion. In 28 years, the number of illegal fundraising cases handled by courts at all levels in China rose by 61.52 compared with the same period in 2008. In the first half of the year, the number of cases received in the first half of the year significantly increased significantly. Under conditions of asymmetric information. Traditional command-and-control legal regulations cannot stop the rapid expansion of private lending. It is also difficult to reduce the risks that may arise from a large number of private lending cases. There is a typical failure of legal regulation. International experience also proved. The use of administrative means by administrative organizations to manage microfinance can easily lead to failure. China's current private lending legal system is mainly designed in accordance with the theory of public interest regulation. To maintain economic and social security as the primary goal. Taking information as an assumption precondition, without considering the special information constraints and incentive functions of private lending, it is simply divided into legal behavior and illegal behavior when determining regulatory standards. When choosing a governance mechanism. Either leave it as ordinary civil behavior or not. Either suppress it and fight it as a disturbance to the economic and social order. The function of legal governance is simplistic and goes to the two extremes.

The unbalanced function of legal regulation is the excessive dependence of regulatory functions on the mandatory function. Ignore the incentive function.

Law-abiding behavior bears higher costs. Escape the law to obtain higher returns. Form a distorted incentive. The difficulty of increasing the legal regulation is that the regulatory function is incomplete. Emphasis on the disposal of creditor's rights and debts and group incidents after the case occurred. Relief and strike functions are more prominent. However, it lacks the function of preventing illegal acts and financial risks. Affect the overall effect of regulation.

Under the goal of public interest security. China's regulation of private lending depends directly on ways to strengthen supervision.

However, this regulatory approach is not in line with the information constraints of private lending. It simply emphasizes that supervision does not contribute to the comprehensive financial development of Anthony, and that Oggs regulates legal forms and economic theory. Mei Mei English translation. Beijing Renmin University Press, 2008, p. 30.

Luo Shukai's Supreme People's Court issued a judicial interpretation to clarify the legal definition and application of illegal fund-raising. People's Court News 2 January 5th, 1st Edition 3 Dai Yinyi, Xu Yinlang and Wang Xiaoqing, Practical Recognition of Private Lending and Illegal Fundraising Crimes, People's Procuratorate, CO Liu Wenchao Research on Rural Private Lending and Establishing Financial Association, Beijing China Financial Publishing In the 21st century, Deng’s organization and system were based on the logical explanation of historicist economics. Beijing Economic Science Press.

The exhibition will, on the contrary, prevent the effective allocation of financial resources and have a negative impact on economic growth. The current legal system does not distinguish the difference between private lending regulations and formal financial supervision under the condition of asymmetric information. Use command control rather than incentive regulation. The idea of ​​adhering to the ruling principle in legislation. By forcing restrictions and crackdowns, etc., they are forcing private lending to pursue legal goals. However, the private lending transaction information is in a relatively symmetrical state. Its credit self-discipline is strong. The cost of self-solving disputes is relatively low, and the implementation of contracts does not depend primarily on the national legal system. Instead, it relied on some sort of civil restraint mechanism to rely solely on orders to control normative private lending. In fact, the use of regulatory formal finance regulates private lending. There is a deviation in the regulatory path. It has become an important reason why China has repeatedly cleaned up and cracked down on the effects of private lending.

As a basic form of government intervention, the legitimacy of legal regulation of private lending comes from the rational allocation of rights and obligations. The current legal regulation of private lending is based on the premise that the government has information superiority and suppression is justified, and it will serve long-term needs of the state to control financial resources. Lack of market competition and free allocation of resources. The design of rights and obligations violates the principle of fairness. There are too many obligations undertaken by private lenders. Less enjoyment of rights 1 The Constitution protects some documents that promote the development of private and private capital. However, due to strong policy and over-regulation, it lacks operability. Regulation practice. The government does not have information advantages in many cases. The suppression of private lending also does not have the natural reasonability. And there is a lack of basic social ethics. The long-term generalization of the use of criminal law in the application of private lending governance. Leaving a lot of institutional risks. Even a typical example of an unfair legal system, the legitimacy of regulation has been widely criticized and questioned in the operation of private lending laws and regulations. Regulators are unable to accurately grasp private lending information. The traditional means of regulating private lending. Including market access restrictions on interest rates, restrictions on funding sources, etc. Although applicable to the regulation of formal finance. However, it is difficult for civil underground financing activities to play its role. The theoretical and practical circles are directly seeking ways and tools to effectively regulate private lending. Influenced by theoretical paradigm and path dependence of institutional change. Limiting the prohibition against punishment and the like are still the basic means of regulating private lending. Structure of rights and obligations, access restrictions, legal liability forms, illegal identification standards, and other systems have not been significantly improved in the long term. The regulatory theory has proposed richer regulatory tools and tools in recent years. Legal Practices in the Financial Environment and Other Areas Lu Feng Yao Yang Financial development and economic growth under the suppression of the rule of law. ; Chinese Social Sciences, 1st year, 1st edited government regulatory economics, Beijing Higher Education Press, 20, year. The 0.148 to legal system design. Traditional regulatory methods often fail due to information asymmetry in the implementation of the system.

This in turn weakens the effectiveness of legal regulation and analyzes the impact of regulation on transaction costs. Command-and-control type legal regulation is prohibited by mandatory rules. Sexual behavior model Strict legal liability One-way value orientation As an institutional constituent element Private lending's range of transactions procedures and subject types are strictly controlled. The space for the market mechanism to function is squeezed.

Under conditions of asymmetric information. In order to reduce the costs of legal repression, lenders would choose to evade the law. Therefore, the increased legal risk is passed on to the fund users through interest rates. This will push up the overall cost of private lending. The degree to which legal progress has deviated from the goals of efficiency and safety explains to some extent the high cost of private borrowing. Facing the failure of legal regulation. Regulatory agencies are forced to rely on punishment, especially criminal punishment. The costs of penalties include the effort to accumulate power and the resources consumed to implement the punishment. , To increase the cost of law enforcement and to reduce the marginal efficiency, to impose a higher penalty for the large amount of small private lending, to form a high cost and low efficiency regulatory dilemma, the impact of the duality of information constraints on legal regulation in the society The interaction of economic development. Private lending and personal economic development are closely linked. Endogenous and Spontaneous Information Constraints Presenting symmetry and asymmetry of information on borrowing transactions coexist. The duality of the relatively complete asymmetry of transaction information and regulatory information coexist. With regard to legal regulation, which has a relatively complex impact, the private bank's easily known information is relatively complete. American scholar Akerlof 016 provided the theoretical basis for explaining the reasons for private lending from the perspective of information asymmetry! Research by domestic scholars believes. Private lending can use private information to better address adverse selection and moral hazard. Reduce the costs of transaction and contract execution. The emergence of private financial institutions is actually a natural reflection of the asymmetry of financial market information. Can make full use of the information stock in the region and overcome information asymmetry. This pre-transaction information advantage has promoted the optimal allocation of private financial resources. It has become an important reason for the continuous development of private lending. But at the same time it has become a convenient condition for private lending to evade supervision, which has increased the difficulty of legal regulation, Yohamm. The diversity of the Baeler country and the first party enforcers, Menard master degree. A Perspective of Contracts and Organizations from the Perspective of New Institutional Economics, Liu Gang et al. Beijing Economic Science Press. Year 256.

On the other hand. In the two cases, the private loan information is asymmetrical and exists between the borrowing parties. Regulatory economics thinks. The information monopoly of information superiority is an important reason for asymmetric information. 1 When the funds are lent. Lenders have the incentive to monopolize certain real information because of their own interests.

Because of the lack of a sound information feedback and tracking system, private lending is difficult for the lender to monitor the borrower during and after the event. The information between the two parties is likely to be asymmetric, in organized private lending. The flaws in the organizational system and the absence of external oversight mechanisms exacerbate the asymmetry of information within the organization = especially when private lending reaches a certain scale or exceeds a defined range. Information asymmetry will intensify progress. The first case exists between the lender and the regulatory agency. As the information of private lending principals is mainly personalized personal information. Typical personal information. The borrower is in need of convenience, speed, and confidentiality. Usually a relatively large number of SMEs who are relatively free and secretive are involved in private lending. The personal information of the borrower forms a certain degree of substitution for the enterprise information and is transmitted in more private information. Private lending generally determines lending rates and terms based on soft information rather than objective criteria. These factors determine that the information of regulatory institutions and private lending entities is extremely asymmetric. Need to eliminate the resulting risks through legal regulation. Affected by the dual nature of information constraints, the information advantage of private lending transactions will reduce the adverse selection and moral hazard in transactions, while also aggravating the changes in market segmentation information constraints. Inducing moral hazard and adverse selection in regulation. There are two paradoxes for legal regulation: private lending requires legal regulation.

Some aspects require more stringent regulations than formal finance, but they cannot provide complete information for legal regulation. Private lending regulations require quantitative public information, but private lending information is highly private in the context of financial repression, in order to circumvent Due to restrictions on laws and policies, or because of the motive of information closure, private lenders often use private information to cover real transactions, and progress has exacerbated information asymmetry from the perspective of regulatory practice. Regulators find it difficult to understand the details of private lending. The dual nature of private lending information constraints stems mainly from its highly reliance on social capital reciprocity rules and trust of social networks. As a result of personal economic development, private lending is endogenous horizontal credit. Exist in a specific economic form and group, in real life, private lending belongs to relational finance. There are mainly reasons why acquaintances are used as a basis for transaction and contract execution. The Optimal Balance of the Social Norm of Social Capital in the Free Combination. Produced in the long-term game in which information gradually improves. Has a strong self-discipline, and plays an important role in the financing of SMEs. 1 Qu Zhentao Yang Yijun Economics of Regulation. , Shanghai Fudan University Press, 2, called year. The first. , Page 2 Zhang Yuanhong et al China Rural Private Finance Research Credit Rate and Market Equilibrium. Beijing Social Science Literature Publishing House. 2,12 years. Page 16.

n Jiang Xuchao. Ding Changfeng's analysis of the category of non-governmental financial theory and the institutional changes in financial research deduction, the logic of one-year O Chen Zhiwu finance, Beijing International Cultural Publishing Company, 200 years. The first page.

The first. The formal financial market is divided from the informal financial market and has spillover effects. 1 The bank adopts the credit rationing system to solve information asymmetry. Many market players, especially small and medium-sized enterprises, are forced to rely on social capital to obtain private funds. The weaker areas such as trust, the stronger the influence of social capital. 3 Private lending as a result of financial repression. Become a financial institution outside the financial system. 3 Private lending relies on social capital to optimize the allocation of resources. It also brings about some prominent negative externalities that lead to public risks. Affecting the public interest; 2 The lenders are having a hard time using social capital equally and there are unfair transactions such as violent debt-raising loan sharks; 3 The lenders are left to moral hazard in order to profit. Loan funds flow into areas that are prohibited or restricted by laws and policies. Affecting the country’s macroeconomic regulation and control brings regional industry and public security risks. Seventy-four lenders evade legal regulations more easily.

With the formation of new social network relations, according to the six-dimensional space division theory. The dependence of traditional private lending has begun to extend to strangers. It extends to non-personalized areas such as partner classmates, colleagues, friends, and even non-persons. The progressive increase in the risk of accumulating the duality of information constraints advances the accumulation of risk. It not only amplifies the negative effects of private lending but also aggravates the dual nature of regulation failures and the asymmetry of private lending information and new changes in social network relationships. Legal regulation also addresses the issue of regulatory information asymmetry. It is also necessary to address the problem of information asymmetry in lending transactions, and the adverse effects of the completeness of information before lending transactions on regulation. The unavoidable choice is whether to use command control or incentives to regulate private lending. And whether it is through the method of increasing the cost or through the method of increasing revenues to improve the effect of regulation, it is necessary to carry out in-depth theoretical analysis and explore the effectiveness of incentive legal regulations in the face of the paradox of the duality of information constraints. The solution to the problem is not to repair the traditional regulatory model. Instead, we should look for new regulatory theories and institutional constructs. In recent years, private lending regulations have gradually broadened as a whole. In 2005, the State Council issued an analysis of non-public 3 Jiang Xuzhao and Ding Changfeng’s private financial theoretical analysis on encouraging and guiding individuals and private individuals. Comparative and Institutional Changes, Financial Studies 2004 5 Yang Lan, Chen Binkai, Zhu Shiyi Research on the Demand Behavior of Farmers' Private Lending on the View of Social Network 1. Some Ideas on the Economic Development of the Economic System. In the year of 210, the State Council issued a number of ideas on encouraging and guiding the healthy development of private investment. . Various ministries and commissions of the State Council have also successively issued series of documents to guide private capital into various fields. Local governments of all provinces and cities have also issued documents to guide the development of private capital. In July 2013, the State Council issued guidelines on the financial support for economic restructuring and transformation, and made progress to expand the scope of private capital to enter the financial industry to promote financial services to better serve the real economy. These documents have reduced the regulatory status of the private lending market. An incentive legal regulation that complements the traditional command-and-control legal regulation should be established to form a legal governance model with a balanced incentive and restraint. Get out of the predicament of relying solely on restraint to regulate private lending Under the constraints of private information on special lending, informal finance has a comparative advantage in addressing information asymmetry in lending transactions compared to formal finance. 1 There is serious information asymmetry between the regulatory agencies and the regulated persons. The command-and-control type of regulation lacks an incentive mechanism for the lenders to tell the truth. The occurrence of adverse selection is the inevitable result of unreasonable institutional arrangements. It is not just the research of Lin Yifu and other scholars that the parties chose in advance. Informal finance can use information advantage to eliminate the adverse selection effect caused by information asymmetry.

The improvement of resource allocation efficiency in the entire credit market can explain the impact of lending transactions on the allocation of resources, but it cannot be used to explain the adverse selection effect caused by information asymmetry in legal regulations. The information advantage of the lending entity has instead become a favorable condition for evading the law. Moral hazard is an internal factor in the formation of private lending risk.

Illegal absorption of public fund-raising fraud, etc. Under the premise of the dual nature of private lending information constraints. Addressing adverse selection and moral hazard There are two legal approaches to governance that prevent adverse selection and moral hazard through government-mandatory measures. Eliminating the possible impact of information asymmetry is to design an incentive compatibility mechanism to induce lenders to choose legally permitted behavioral incentive legal regulation to overcome the defects of public interest regulation and departmental interest regulation. Information asymmetry is the premise of institutional design, centered on the design of optimized mechanisms and the use of different regulatory tools. Pay more information by paying information to private lenders to compensate for rent. The public and regulatory agencies rely on more information to make a more objective analysis and assessment of the design and implementation of regulations. On this basis, the regulatory mechanism will be determined and regulatory actions will be implemented to reduce adverse selection and moral hazard arising from asymmetric information. If the law does not provide modest incentives for highly liberal and covert private financing activities, private lending will rely on information advantages to move underground in order to profit. Progress has intensified adverse selection and moral hazard under conditions of regulatory information asymmetry.

Incentive legal regulation can better play the role of market mechanism. Effectively reduce the transaction costs of private lending. In order to pay reasonable information rent. Raise the enthusiasm of the borrower to transfer information and accept regulation. Law 1 Zhang Yuanhong, etc. China Rural Private Finance Research Credit Benefits and Market Equilibrium. Page 214, Chen Xi, Information and Incentive Economics, Shanghai Gezhi Publishing House, Shanghai Joint Publishing Company, Shanghai People's Publishing House, New Year (1) page of the adoption of various incentive measures. Allowing trading entities to leave a greater choice of mechanisms for the allocation of resources in the space market can better play a fundamental role, and the free goals and efficiency goals of private financing can be better reflected.

The efficiency of lending transactions has thus been improved. At the same time, the adoption of incentive regulation can reduce the illegal risk transaction costs of private lending. Therefore, the reduction in progress while reducing transaction costs, incentive regulation will be the private lending market as a level of the financial market. It conforms to the objective operating rules of private lending and satisfies the requirements for optimizing the allocation of private financial resources. Promote legal objectives and goals. Making the cost of private lending equal to the marginal cost and improving the overall efficiency of the allocation of private financial resources The process of regulating the behavior of private lending principals is a process that is affected by both economic and non-economic factors. Legitimacy, as a non-economic factor, directly affects legal regulation. effect. Incentive legal regulation provides reasonable guidance for the flow of private finance capital, giving lenders more freedom to allocate resources, more in line with the requirements of free flow of private capital, and reflects the legitimacy of the value and the legitimacy of reality. On the other hand, marketization has become the basic trend of government intervention. The institutional changes of the financial system must be accompanied by the market-oriented transformation of government behavior. The legal regulation of private lending should also reflect the principle of marketization. Realize the integration of government regulation and economic regulation of market mechanism and social regulation. The main reason for the failure of private lending regulations, including regulatory prisoners, is due to information asymmetry. The need to use incentive mechanisms to compensate for the rise of incentive regulation theory and deregulation theory in the world proves from the side that the objective requirements for the development of government regulation are under the circumstances where market failure and regulatory failure coexist. The introduction of incentive regulation reflects market orientation. Improve the legal goals and the behavioral goals of the main body, and lay the ethical foundation for the effective implementation of the legal regulation of private lending.

Reduce the social resistance arising from the public's questioning of legitimate goals. The interest game mechanism of incentive legal regulation is analyzed from the perspective of institutional change. The existence and development of non-governmental finance is the result of the game between the formal financial non-governmental finance and the small and medium-sized enterprises in the market. The legal regulation of private lending is also the result of the multi-stakeholder game, which has become an important factor influencing the incentive effect of legal regulation. Under the special information constraint of private lending, incentive legal regulation has more effective governance functions and optimization of incentive legal regulations. It has become the basic direction for the improvement of China's private lending legal system. Influenced by factors such as the path dependence of institutional change, how to establish a good cooperative game mechanism has become the core issue of optimized design of incentive legal regulation.

At present, China's excess repression and regulation of private lending are both at the same time, and the phenomenon of information asymmetry is very great. He Daan's main regulation of industrial regulation and its effects. Shanghai Gezhi Publishing House Shanghai Union Bookstore. Shanghai People's Publishing House. Take 2 years, page 15.

Wang Shuguang Evolution of Financial System in Economic Transformation, Beijing Peking University Press. 2,7 years. Page 1, 4 虞 Group 娥 Li Aixi Empirical analysis of symbiosis between private finance and SMEs Hangzhou case. The highlight of financial research and information asymmetry are the basic reasons for the widespread existence of informal finance. The unilateral orientation of deregulation regulations is designed to optimize the design of China’s citizens and lending systems. It cannot be solved from the source. Under the current conditions in China, changes in government regulations should be a matter of deregulation and regulation. Strengthen regulation. In parallel, advancement 2 should maintain market autonomy and state intervention to balance market opening and government regulation. Establish a cooperative game system between regulatory agencies and lending entities under incomplete information conditions. Establishing the basic framework of incentive legal regulation, simply relaxing the regulation of private lending or relying solely on the control of the state's coercive power, is not a requirement for cooperative gaming.

The game between formal finance and private finance is another important factor that influences the optimization of legal regulation of private lending. Private lending and formal finance both compete with each other and complement each other. Due to concerns about private financial risks, many people oppose the development of private finance. Advocating the transformation of non-governmental finance into a part of modern finance through improving its organization and formalization path. 1 The private lending market is a rational response to policy distortions and financial repression, and it has the necessity and rationality of existence. Under the condition of financial market segmentation, the organizational and formalization ideas can certainly solve some of the problems of private lending. However, it will also eliminate the information advantages and cost advantages of private lending. Increase the transaction costs of private lending. The effective allocation of financial resources is relative to the path of deregulation and organization. Establishing selective and diverse incentive mechanisms is the better choice. This mechanism is selective rather than purely controllable. It is pluralistic rather than unisexual. It is differentiating. It is beneficial for all parties to develop cooperation games under incomplete information conditions. This mechanism considers the heterogeneity of both parties of private lending and the behavior and competitive relationship of lenders with different information structures. It integrates the latest regulatory ideas of market ethics and the development of regulatory technologies. factor. Provides institutional guarantees for all parties involved in the cooperation game.

Overcome the main defects of traditional command and control laws and regulations. However, it will not completely replace the traditional legal regulations and realize the enrichment and development of the existing legal regulation is an inclusive institutional reform.

In the legal mechanism of the cooperation game between the parties, the implementation of incentive legal regulation of private lending is not to give benefits solely, or simply to provide some incentives and policies, but how to weigh the incentives and costs and the parties in the private financial governance The game situation in China establishes a scientific information pricing mechanism to improve incentive compatibility and implementation effectiveness. Under the guidance of interests, private companies and companies only have the expected benefits when they exceed the expected costs.

2; Chen Fuliang regulatory policy analysis regulatory equilibrium perspective. Beijing China Du Union Science Press, 2,17 years, 3 private financing of Luodanyang SMEs, Beijing China Finance Press, 2009, p.144.

The only way to seek the exercise of rights is to optimize the design of incentive laws and regulations. It is to make trade-offs between information rents and incentives and to make choices. It is a dilemma: how to incentivize information pricing must pay higher information costs. Reducing information rents cannot provide effective incentives. This is the difficulty in optimizing the legal regulation of private lending incentives.

The counteracting interaction and game between interest groups of the regulatory agencies and private lending entities will eventually affect the choice of institutional design, and may result in the failure of the game to return to the path of simple control. The game between the market players and the regulatory agencies started around the incentive compatibility degree centered on information pricing. It is difficult to optimize the design of the incentive system. In solving this dilemma, diversification incentive mechanisms are selectively responsive and instructive. It can better solve the difficulty of information pricing and make up for the legal deficiencies that the game failure in the legislation may bring. In a specific design. Diversification incentive mechanism should be a pluralistic institutional structure.

First, regulation should take into account multiple goals such as efficiency, fairness and security. The multiplicity of regulatory goals can easily affect the effectiveness of regulations. 3 But it is helpful to determine the flexible information pricing mechanism and the cooperation game of the stakeholders. The selective incentive mechanism for diversification is necessary. Secondly, a multi-central governance structure in which the regulatory bodies' judicial bodies, including the public consumers, are involved in a multi-central governance structure is formed to form a more inclusive financial system. Again, the diversity of regulatory tools and instruments. For example, the introduction of regional competition price caps and other means of conversion, enrich information pricing methods, make up for legislative deficiencies, incentive rules should have diversity. Including prohibitive rules, incentive rules, arbitrariness rules, and statutory rules, etc., to construct a legal system that is more responsive, comprehensive, and inclusive, and provides institutional conditions for flexible pricing and the development of multiple cooperative games between all parties. In the game, the interaction between national level legislation and local level legislation is realized. It is a difficult point in the design of incentive legal regulations. Legislation concerning private lending regulations faces many difficulties at the national level. Legislation due to interests is more complicated. Involve a wide range. There has been no substantive breakthrough. The criminal legal system has long adhered to the traditional concept of governance. Take repression and blow attitudes to private lending. Local governments are considering economic development.

We are positive about innovating the private lending system. In the year of 1212, the State Council approved Wenzhou and Quanzhou, two financial reform experimental zones. Regulating non-government financing has become an important part of the pilot areas of the two financial reform experimental zones. However, from the point of view of the pilot sites. Local institutional innovation faces some difficulties. First, there is no interaction between local and national institutional innovation. The direction of innovation is not clear. The legislative power of local governments is extremely limited. It cannot break the restrictions of laws and regulations at the national level. The measures introduced are mostly service-oriented. Such as the establishment of information platform registration center advisory services and so on. Almost none of the core issues of legal regulation of private lending are involved. It is difficult to form an effective incentive structure.

The value and effect of institutional incentives are not obvious. Taking into account the special nature of private lending. Under the existing legislative system. It is difficult for the bottom-up reform pilot to establish truly incentive legal regulations. The end result may be the introduction of some local policies and administrative measures. In order to solve the difficulties in the game of private lending legislation. Build incentive legal regulations. It should be based on summing up local legislative experience. Start national-level legislation as soon as possible. The formation of national legislation CO Antonio Gregors regulated the legal form and economic theory. Page 27.

Yang Jianwen's government regulates the trend of theoretical research in the 21st century, Shanghai Xuelin Press, 2007. Page, interaction with local legislation. Promote private lending legislation in the cooperation game between the central and local governments. Establish a sound legal system for private lending. To change the current status of inability to comply with and remove rulings in the current judicial and law enforcement practices. It should not wait indefinitely for local pilot experiences.再拖延民间金融法律制度的改革与创新法律优化设计中规制工具的选择优化民间借贷激励性法律规制的重点。是把激励功能嵌入现有或新设法律制度中。针对不同类型的民间借贷建立选择性的多样化激励机制，奠定民间借贷主体自主选择的制度基础1民间借贷激励规制的优化设计并不必然产生良好的激励效应。

规制工具的选择与运用会直接影响激励性法律规制的实施效果。建立选择性的多样化激励机制。应当以激励相容度为标准。以信息定价信息租金为切入点。着重优化以规制工具综合及有效运用为主要内容的制度设计。形成有效的激励结构，准入条件的设置我国民间借贷需求直十分旺盛。 aspect.我国有根深蒂固的民间借贷文化和传统。 ，改革开放以来，民间积累了大量资本，非市场化的存款利率偏低。资本市场积弊已久，实体经济利润微薄。大量资本亟待寻找与收益相匹配的投资出路另方面，近年来我国民营经济快速发展，资金需求数量不断增长。在间接融资市场中。银行受信息不对称的影响难以为中小企业提供充分的融资，直接融资市场因创新不足也难以为中小企业提供有效的融资渠道。中小企业存在通过民间借贷融资真正意义上的合法民间信贷机构。这种局面加剧了民间融资市场规制的信息不对称性，形成以高利率补偿高风险的状况在法律上给予民间借贷获得合法地位的机会并通过市场准入条件设置。引导民间借贷从地下转向地上。是减少信息不对称并对其实施有效规制的前提条件民间借贷合法可以满足其规范经营的诉求。提供了在信贷市场建立多方主体合作博弈机制的可能性。在公共利益范式下。准入限制是维护公共利益和减少系统性风险的手段。对民间借贷保留适度的准入限制是必要的在部门利益理论范式下。恰当的准入限制可以降低规制者应支付的租金。减少规制者被俘获的现象，为了提高民间资⑴邓宏组织与制度基于历史主义经济学的逻辑解释，第2，页，罗彤华唐代民间借贷之研究。北京北京大学出版社，2001年。第页。

本在各行业的自由流动性。应当放开投资市场让民间资本进入更多的领域依法赚取合理的利润目前我国有关民间借贷准入的法律规定比较分散和宽泛。合法借贷与非法吸收公众存款集资诈骗等违法行为之间界限模糊。容易打击民间借贷主体依法开展经营活动的积极性=在法律优化设计中应加强民间借贷的准入制度供给。

在肯定民间借贷合法性的基础上。合理设定准入条件。拓宽业务范围和市场经营空间。发挥准入制度的激励性作用。促进约束与激励的均衡。

在激励规制框架下。设定准入条件是各方利益博弈的过程。核心是对信息租金定价如果条件设置恰当，具备激励功能。民间借贷主体就会选择依法开展活动，如果条件过高。激励不足，民间借贷就会选择逃避法律规制如果准入条件过低，又会增加金融市场的风险。按照激励与约束平衡的原则，在设定准入条件时应当重点考虑以下要求第，严格划定违法与非法的界限。在立法上明确列举被禁止的行为，其他民间借贷行为均属合法行为第。按照分类治理的原则。对不同借贷主体设定不同的进入条件。对于民事性借贷。可以不设任何准入条件。完全放开；对于经营性的借贷。较为宽松的准入条件具有支付信息租金的作用，可参考有关小额贷款的规定设置相应条件，激励经营性民间借贷进入法律调整的范围。第。放宽民间借贷市场准入可能会降低对风险的控制。对此可考虑通过加强民间借贷的经营性监管，以防范因放宽准入可能增加的风险区域竞争机制随着科技发展贸易和投资壁垒的逐步减少。金融市场主体的活动范围不断扩大。金融业作为现代经济体系的核心始终伴随着现代市场需求的增长而不断扩大区域范围。对于民间融资。扩大经营区域范围实现资源优化配置降低风险集中度的逻辑和机理同样适用。区域竞争作为激励性规制的主要工具。具有信息定价和支付信息租金的功能。可以在两个方面推进各方的合作博弈。促进民间借贷的规范发展方面。通过放宽经营范围限制引导民间借贷根据区域经济的差异性在不同区域开展更加有效率的竞争。具有信息租金支付的效果通过与区域经济制度和政策相结合。出台依托各地区资源优势和促进竞争的激励措施。建立不同区域间的差别性激励机制，引导民间借贷在不同地区间自由开展竞争。改善区域金融发展的生态环境。实现金融资源在不同地区的有效配置。促进民间资本服务于区域间的协调发展，考虑到民间借贷完全信息的优势。民间借贷跨区域经营也不宜过于放开。否则将陷入马歇尔冲突，丧失其特有地缘及信息优势。，根据经济学中的马歇尔冲突原理，民间借贷的规模经济是有限的，如果超出定的另方面。通过与产业制度和政策结合。引导民间资金在不同行业开展更加有效率的竞争同样具有支付信息租金的作用从现实情况看。民间借贷产生系统性风险的重要原因在于脱离实体产业，过度进入某些高利润行业，如金融投资业房地产业矿石开采业等，这些行业中有的是国家信贷政策禁止或限制进入的领域。

蕴的风险比较大。通过立法和制订新政策开放金融通讯能源等垄断且利润较高行业的市场。建立这些领域公平竞争与投资保护制度引导民间借贷自由进入各个领域的实体经济建立民间金融资源在不同行业间的有效配置机制促进民间金融资本服务实体经济发展。同时降低信息的不对称性。提高民间借贷法律规制的效果。

差异化税收减免税收是消除市场外部性的社会规制手段。通过特别的减税或抵税政策鼓励某种行为，能够协调各种制度。提供适当激励并产生弹性结果，民间借贷长期逃避法律并隐藏真实信息。个重要原因就是为了避税。合理降低民间借贷遵守法律的税收成本可以起到激励其发展的积极作用，在民间借贷的税收制度设计中。可以考虑按照主体行为而不是主体身份实施差异化税收制度首先。对于纯粹的民事性借贷。因不具有营利性或营利性不明显。

可以明确免除其税收，从美国些州的经验看，不具有营利性的偶然性借贷可不遵守关于放贷人的法规，也不必缴纳基于借贷而产生的税收力其次。对于商事性民间借贷。因属经营性融资活动。应适当征税但对于具有定公益性质如投放农促进中小企业融资的民间借贷，可以参照衣村信用社或农村资金互助社的规定，享受税收减免优惠。再次。根据民间借贷交易的特征，可通过税收激励手段引导其投向国家鼓励的领域。如对于投向战略性新型产业绿色环保产业的民间借贷可以比照正规金融机构的政策给予更加优惠的税收减免或财政补贴，差异化税收减免实际上是对民间借贷主体转让信息进行定价并提供相应的租金该制度实施的效果取决于税收减免对出借人成本与收益的影响，即给予多少信息租金。基本标准应当是出借人所承担的税收负担小于法律保护所带来的收益如规模。民间借贷交易中的信息优势和成本优势就会消失。反过来限制民间借贷的规模扩①史蒂芬布雷耶规制及其改革〃，李洪雷等译，北京北京大学出版社2加年。

第，页。，如美国纽约州的放债人条例〃将个人或企业偶尔的借贷行为排除在商事行为之列。

不需要申请法律规定的牌照参财政部。国家税务总局2，年发布的国家税务总局关于衣村金融有关税收政策果税收负担超过法律保护所带来的收益。出借人就会为了利益而规避法律。信息不对称会加剧。如果税收负担小于法律保护所带来的收益。借贷主体就会自愿接受法律的约束旦民间借贷进入法律的调整范围信息不对称程度就会降低胃可以更好地实现规制的预期目标在这个条件下。按照主体行为而不是主体身份实施差别化税收可以发挥个激励作用是增强民间借贷接受法律调整的积极性。解决民间借贷长期脱离法律调整的难是减少民间借贷规制中的逆向选择和负外部性；是引导民间借贷更多地服务实体经济发展多样化利率限制利率限制关系到资金价格和信息定价租金。在正规金融机构利率市场化后。

特别是取消贷款利率上限和下限后。1民间借贷的利率问引发了很多争论3我国债务市场整体发展相对滞后。利率上限依然是调整信贷市场的重要工具。目前不具备完全废除利率上限的条件从境外的立法实践考察美国大部分州规定了最高利率限制。1部分州专门规定民间借贷非正规金融机构的贷款利率上限。且低于正规金融机构的贷款利率上限1欧盟27个成员国中21个国家的法律规定了最高利率限制。，此外。加拿大日本香港及台湾地区的法律也都不同程度地规定了利率上限。，面上看。最高利率限制影响借贷的自由定价。不利于引导民间借贷主体守法经营但是，从长远看。如果最高利率限制比较合理，利率限制内的民间借贷能够获得法律保护，同样可以发挥有效的激励功能，1年月2，日出台的中国人民银行关于调整金融机构存贷款利率的通知规定金融机构城乡信用社除外贷款利率不再设定上限。20；年7月1日出台的中国人民银行关于进步推进利率市场化改革的通知规定从扣13年7月日起，贷款利率下限票据利率贴现管制。农村信用社贷款利率上限等限制全部被取消，⑦香港放债人条例第24条和台湾地区民法典第205条规定了对借贷利率的限制。

曰本利率限制法规定最高利率上限为20，出资法规定在征得借债者同意时，年利率可以超过20的上限，最高为29.2.

我国对民间借贷利率的限制，仅有最高人民法院的司法解释规定超过银行同期存款利率倍的不受法律保护。其他法律法规无明确规定。考虑到民间借贷利率差别较大。高利贷现象比较突出。1可与民间借贷的类型结合，建立激励性的差别化利率规制机制。形成有效的激励性规制工具是与借贷的法律形式结合起来。区别登记合同和非登记合同。放宽登记合同权利义务关系。减少不必要的诉争。又可以引导民间借贷主动进入政府机构的统计范围。便于规制机构掌握民间借贷的规模实际利率水平资金流向等信息。降低信息不对称程度。为制定宏观调控政策及其他经济政策提供比较准确的依据。也可以为防范区域性金融风险提供参考是与借款的用途结合。区别消费借贷和非消费借贷。采取不同的利率上限。

消费类民间借贷般不以盈利为目的。具有互助性特点。过高利率可能导致自然人陷入财务困境。可以考虑严格限制此类民间借贷的利率上限。体现法律保障民生的价值目标投资类民间借贷主要用于经营属于经营性融资活动。借贷双方通常具备公平议价的能力可采用相对宽松的利率限制为借贷双方留下议价空间。提高借贷双方遵守利率限制并转让信息的积极性保障民间资金的有效流动和配置是与借贷金额结合区别小额民间借贷与大额民间借贷。规定适用不同的利率上限，小额民间借贷中的借款人往往处于弱势地位。保障交易的公平性成为规制款人公平议价的能力比较强，资金配置效率成为法律规制的主要目标。利率上限可以适当放宽，发挥市场机制优化资源配置的基础作用，是与借贷的期限结合。区分短期借贷与长期借贷。规定适用不同的利率短期民间借贷主要用于解决资金急需的困难，可以接受较高的资金筹集成本。可以适用较高的利率。对于中长期借贷。应当限制在相对合理的利率幅度内。这种利率的期限结构与银行法定利率期限结构完全相反。与民间借贷的实际利率结构基本致。

反映了民间借贷尤其长期民间借贷的投资性以及长期利率的稳定性，同时说明民间借贷利率对风险而非资金流动更加敏感。；利率作为资金价格主要由借贷成本和供给状况所决定，短期借贷因筹资成本较高，利率也应当高些。对短期借贷规定较高素很多，利率仅是其中个，实际需求与财务安排在很多情况下可能更为重要在多郑振龙林海民间金融的利率期限结构和风险分析来自标会的检验。金融研S罗丹阳中小企业民间融资。第92页；种因素影响下，即使这种利率机制会导致部分长期借贷转变为短期借贷。但对民间借贷结构的影响比较有限。对民间借贷交易成本的影响也不会太大。

差异化利率限制嵌入了激励性规制的引导功能。与借贷交易的基本内容结合在起。更加符合民间借贷的现实特点。作为价格工具也更加丰富和具有可操作性，是民间借贷规制中比较有效的信息定价机制，同时。这机制融合了效率目标与公共利益目标，契合民间借贷法律治理的主要价值追求。

大额借贷登记登记是典型的信息提供行为，在民间借贷法律规制的机制设计中，理论上讲可以要求所有的民间借贷进行登记。为此，有些地方政府的规范性文件专门规定了登记制度。登记无疑增加了借贷的成本，在缺乏有效激励工具的条件下。实践中的操作性较差，许多地方的民间借贷登记中心运行效果不佳。形式意义大于实质意义。

已经出台或起草的地方性文件为了激励民间借贷自愿登记。规定法院应当优先受理经登记备案的借贷当事人起诉案件。或规定经登记的材料可以作为效力较高的证据等。此类规定超越了地方立法权限。干预了司法机构的审判权。实施效果难以达到预期目标。甚至可能导致法律适用的矛盾登记作为转让信息的制度安排不必强制性地适用于所有民间借贷。应以大额民间借贷为适用对象，并对登记主体实施差异化的利率上限税收减免及债权保障。

可以产生较好的效果。关于大额借贷的具体认定标准。可由各省金融管理部门根据本地经济发展状况自行确定。作为对登记主体的激励给予信息租金。登记后的大额民间借贷可以在法律上享有项权利更高的利率浮动权税收减免优惠和优先受偿权同时，对大额借贷主体的隐私权提供充分的法律保护，防止民间借贷主体以外的人采用不正当手段获取大额民间借贷的信息，并禁止登记机构对外披露大额民间借贷的信息但不包括民间借贷的统计信息等对于没有登记的大额民间借贷主体，不必设定额外的法律责任。只规定其不享受登记后的利率浮动权税收优惠权和优先受偿权即可。这种登记与资金价格税收优惠债权保障相结合的激励性规定能够支付更多的信息租金。增加其自愿登记的正向激励作用。既可以提高大额民间借贷交易的透明度及合法性。又可以保护当事人的正当隐私权从国家监管的角度看。 aspect.大额民间借贷交易登记制度满足了民间借贷的信息披露和信息保密的双重要求。可以避开法律规制实施过程中的操作性难。 On the other hand.登记制度承认了民间借贷与生俱来的私密性，考虑了民间借贷的外部性道德风险及逆向选择问，可以很大程度上满足规制机构对大额民间借贷总量和结参鄂尔多斯市规范民间借贷暂行办法2，12年颁布7温州民间融资管理条例草案。

构性要素信息的需求为政府及时了解社会融资总规模等重要指标提供有价值的参考，同时大额民间借贷信息的合理披露有利于借贷双方获得更充分的信息，减少因信息不对称涉嫌违法交易等所产生的成本。降低民间借贷交易的道德风险和逆向选择，引导民间借贷趋于理性，避免发生区域性的金融风险。

六主体身份转换在信贷市场中因为金融业实行特许经营制度。不同主体类型的发展空间存在明显差别民间借贷主体出于发展的需要不仅希望用自己的资本金从事放贷行为，更希望有机会转制成为银行业金融机构，能够通过公开吸收公众存款扩大经营范围。

按照业务层次不同，金融市场主体从低级到高级大致可以划分为类只贷不存的放贷人可以吸收大额存款并且放贷的金融机构可以自由吸收各类存款并且放贷我国金融市场发展的基本方向在这个方向下，应当为低级机构向高级机构转换提供正式制度安排。激励各类主体按照更高的法律标准严格守法经营，为转换主体身份奠定基础目前我国信贷机构向高级主体类型转变的法律路径并不通畅银行业进入门槛偏高。尤其对民间资本进入施加了额外的限制，降低了法律规制的激励作用。213年7月日国务院办公厅发布关于金融支持经济结构调整和转型升级的指导意提出了推动主体转换的个意是鼓励民间资本投资入股金融机构和参与金融机构重组改造；是允许发展成熟经营稳健的村镇银行在最低股比要求内，调整主发起行与其他股东持股比例；是尝试由民间资本发起设立自担风险，这些内容较为原则，需要通过具体的制度设计加以落实。

构建民间借贷激励性主体法律制度应当摈弃按照固定的主体身份建立不同法律制度的思维，为合法经营的民间借贷机构提供转型升级的路径，形成与贷款可得性具有同样功能的主体身份可得性的信用激励机制。鼓励民间借贷机构追求长期发展目标。依法开展经营活动，抑制追求短期暴利高利贷动机。逐步走向规范发展的常态。规定相对宽松的主体身份转换条件。有利于激励民间借贷主体接受法律规制。有利于民间借贷走向规范化。并获得较好的实施效果。

结语史普博认为。管制的历史向我们揭，结构性的经济变化经常伴随着政府干预市场的新形式，我国改革开放以来不断调整经济结构和转变发展方式，民间借贷①丹尼尔史普博管制与市场。第15页。

法律规制也应当随之采用新方式；随着影子银行地方政府债务等问的出现。对民间借贷的法律规制变得更加复杂本文尝试用规制理论解释民间借贷的法律规制问，推进民间借贷规制理论的深化，通过对现实的考察可以看到。在特殊的信息约束条件下。传统的命令控制型法律治理模式已经落后于民间金融发展的需求。

激励性规制理论为解释民间借贷法律规制提供了比较理想的范式，建立以多方合作博弈为核心的选择性的多样化激励性法律规制。成为民间借贷法律制度完善的基本方向。

在优化民间借贷法律制度的同时。应当认识到。法律规制仅仅是规范民间借贷并防范其风险的个重要方面。并不意味着可以解决民间借贷的所有问。当前国内外广泛关注的影子银行地方政府债务宏观调控等因素对民间借贷的影响。已经超越激励性法律规制的边界。很难依靠法律规制单独解决。而且。激励性法律规制本身也存在些缺陷大部分激励性规制的机制设计建立在系列假设之上。如规制者与被规制者的共同认识承诺与信息租金的存在等。这些理论假设在某种程度上影响了激励机制的普适性。而且激励机制的设计比较复杂。限制了其在实践中制的选择无疑是激励性规制理论研究的重点。但很容易忽视对社会经济关系和制度因素的分析。演变为纯技术性问1因此在探讨民间借贷的法律规制问时应当注意制度分析的框架。尽可能避免出现此种情况。

社会性规制在19世纪末之后不断强化即使在20世纪8，年代普遍放松经济性规制的背景下。社会性规制在信息不对称存在外部性的领域仍然获得了较快发展。

实践中的规制政策逐渐倾向于综合使用经济性规制工具与社会性规制工具。民间借贷法律规制的重要目标之是防范其可能带来的经济风险和社会公共性风险。在优化我国民间借贷激励性法律规制的机制时。尽可能综合使用经济性规制方法与社会性规制的方法。选择有效的法律规制工具促进民间借贷正面效益和价值的实现守住不发生区域性金融风险的底线，当然。规制效果并不仅仅取决于制度设计。还取决于其他许多因素如个人破产制度债权司法保护制度担保制度利息计算制度政府债务制度等。都需要从理论上开展更加深入的研究，责任编辑赵磊责任编审张芝梅张红凤杨慧规制经济学沿革的内在逻辑

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