民间借贷风险中英文对照外文翻译文献.docx

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1、民间借贷风险中英文对照外文翻译文献民间借贷风险中英文对照外文翻译文献 民间借贷风险中英文对照外文翻译文献 (文档含英文原文和中文翻译) 民间借贷风险中英文对照外文翻译文献 THE STUDY OF PRIVATE LENDING RISKS 1 The typical reflection of folk lending risk typing method Risk duality, uncertainty and exposure, suggests that the risk is the contradiction between objective reality and subje

2、ctive expected deviating relationship, which induced by the uncertainty of objective existence is contrary to expectation of opportunities and possibilities. In view of the subjective understanding on the incompleteness of bounded rationality and objective information, risk regulation (risk regulati

3、on will require the subject should be to seek the breakthrough of methodology to make up for congenital deficiency of subjective and objective, typed research method is the optimal choice. The reason has this function, because typed method introduced broke the abstract and specific on the methodolog

4、y of law of binary opposition, and quickly became a mediation that connects the two. To be specific, typed has the function of abstract concrete, concrete abstraction can get through the subjective and objective and the second pulse, to reduce the objective and subjective, thus effectively regulatio

5、n risk. Again, folk lending the type is various, characterization, its hidden risks also reveals the uniqueness, therefore, the legal regulating of the private lending risk need to risk types into a cornerstone, to ensure that the risk system, completeness and effectiveness of regulation. From the p

6、oint of the present study, many scholars have used the typed methods was carried out on the private lending risks., for example, many scholars believe that the formal finance is the deepening development of folk lending and the result of regulation, investigate its root, in monetary financing ways,

7、there were little difference. Therefore, typed on the private lending risks in the process of division, can draw lessons from the regulation of Basel 2, divide the risks of private lending for credit risk, operational risk, market risk and strategic risk types; Also have some scholars based on legal

8、 issues existing in the private lending, private lending risks can be divided into risk of interest rate risk, identity and USES risk; And scholars from the 1 民间借贷风险中英文对照外文翻译文献 private law and public law level typed divides, its risk is divided into public law and private law risk; From the financia

9、l system, financial regulation and financial regulation to study the three aspects and so on. In a larger extent, the above all kinds of risk classification method is more based on the characteristics of the financial industry. It is important to note, however, different sectors, disciplines have di

10、fferent ways of thinking, focus and value choice, to a certain extent, the risk of the financial industry classification standard, management standard is not completely accord with the requirement of risk been regulated in law. Typical folk lending typed partition method, most of them from the Angle

11、 of finance or the financial sector risk, more focused on the specific risks, although have typed in the name of, but no reality of the typing, which is difficult to realize effective regulation of private lending risks. In view of the financial sector risk types of classification method, this artic

12、le only in Basel on the division of risk types, for example, to prove the risk classification from the viewpoint of illegal learning bring risk regulation of the troubles and problems. From the perspective of risk regulation, the Basel agreement will be divided into credit risk, market risk, operati

13、onal risk, legal risk, reputation risk and liquidity risk six types. By many scholars, however, this kind of classification has a larger question, they think that operational risks include legal risks, and to some extent, liquidity risk, market risk, including further, many people think of sensitivi

14、ty of reputation risk. Therefore, we should put risk is divided into credit risk, market risk and operation risk three types. First of all, from the point of view of law, the law emphasizes more on non-market risk regulation. Therefore, the market risk can be ruled out in this paper. Followed by que

15、stions about operation risk definition. In the new Basel capital accord, the original definition of operational risk is the risk other than some of the market risk and credit risk, this definition method is fuzzy, lack of pertinence. Since the operation risk is the risk of market risk and credit ris

16、k, the inevitable requirement of market risk and credit risk definition must be clear. Different institutions to credit risk and market risk, however, there are large difference between the range of designated, it will further increase the uncertainty of operating risk. Take a step back, even if the

17、 definition of operational risk within the financial 2 民间借贷风险中英文对照外文翻译文献 institutions is certain, however the banks own definition of operational risk may be different in the regulatory definition of operating risks (regulatory definition might be more widely).In a sense, in real life for breach of

18、promise is the symbolization of credit risk characterization, at the same time, the operation risk is also a manifestation of the persons behavior, both can be reflected in the behavior, and both can be called behavioral risk. So, can will be the realization risk, operation risk and credit risk -, u

19、nder the general of behavioral risk types, thus realize the effective regulation of risk. It is obvious that the Basel agreement typed yes will be divided into the risk regulation institutions for risk regulation and the introduction of the legislative branch of risk regulation. Of course, I do not

20、deny that the Basel agreement typed on the risk classification of finance, perhaps for the internal control the risks of financial institutions, meaning is very profound. However, from the perspective of law, finance or the financial sector to typed the risks of private lending division standard or

21、method for risk regulation is slightly inferior. Because of this, the author will use legal thinking methods of private lending risks are typed, and regulation, the first use of law on the theory of subjective and objective relationship to private lending risk is divided into main risk and risk beha

22、vior of two types, and then build the folk lending subject classification difference registration and classification guidance regulation coupling double nested risk regulation mechanism, to effectively regulate the folk lending subject risk and the risk. 2 The standard of law under the view of folk

23、lending risk typed and type analysis As mentioned above, since the legal regulating of the private lending risk from level typed analysis of law, then it is necessary to study how to make typing? Should be typed as the standard with what? Typical of the law the relationship between subject and objec

24、t analysis method is the best choice. From the law of the relationship between subject and object thinking method to obtain the private lending risk deconstruction as the main body and object risk, then combined the subject and 3 民间借贷风险中英文对照外文翻译文献 object risk considerations, its specific performance

25、 as follows: first, the law is clear right and obligation is the most fundamental, most the core elements of the law and the rights and obligations are to be subject to or not to take to implement the action, and based on the adjustment object of law is behavior as well as the main body is equal to

26、its statements and expressions of a series of behavior, and behavior is indispensable to the risk analysis blindly elements, furthermore, is the inner meaning of external expression and implementation, lose the behavior of the subject must be pale, or even non-existent, reality subject cannot little

27、.Second, the legal relationship including the subject, object, content, behavior and intellectual property, etc.) and three aspects of content, has been holding the legal thinking of the relationship between subject and object method, and the subject and object, which is the core of the legal resear

28、ch, stressed without there is no such thing as the subject and object of legal norms; Will the relationship between the legal relationship as the plural subject and behavior. Based on the two points, the author divided the private lending risk as the main body of risk and risk behavior of two types,

29、 and within the framework of private lending risk type deliberative contents and the causes of private lending risks, and then realizes the private lending risk typed legal regulation. Folk lending risks.” Identity is vital for the judgment of the risk, the risk of identity different may lead to the

30、 nature of the risk, the risk liability is different, even decided to risk existence in private lending activities, behavior subjects include natural persons, legal persons and other organizations, and in the different lending activities, different main body plays a different role, can be either bor

31、rowers and lenders, yes key is an intermediary, and risk Bear will also vary. In terms of our country folk lending, folk lending subject risk mainly refers to the folk lending legal relationship, because the people borrowing between main body and lead to the risk of inadequate, the folk lending subj

32、ect because of the lack of legal business licenses is engaged in the business of lending and deposit-taking business, with a legal qualification but beyond the scope of business, etc., and the possibility of adverse legal consequence. Its main performance for private lending intermediary wind risks

33、and lending between non-financial companies subject two types of risk. 4 民间借贷风险中英文对照外文翻译文献 Private lending intermediary main risk Firstly, the natural type body discomfort, the risk of private lending the middlemen. Does not involve the third person of the civil lending between natural person is all

34、owed by law, but now most folk lending by the familiar people borrowing, lending evolved into between strangers who type natural folk lending agent generates, and informal lending natural intermediary toward specialization. Among them, a lot of natural person no intermediaries to limit its business

35、on the general introduction of lending or borrowing for range, but in the absence of fixed in accordance with the procedures to apply for legal license, illegal engaged in absorb deposits and issue loans and other financial business, easy to cause the inadequate subject risk problems. Second, the ty

36、pe of legal person private lending intermediary body risk. In real practice, folk lending middleman present institutions, the trend of, however, the current laws and regulations have not been to effectively confirm the legal status of private lending agencies, the rights and obligations is also a la

37、ck of proper regulations, irregularities is very serious, lead to private lending risks occur. Risk of non-financial corporate lending between the main body first, general borrowing main body between the industry and commerce enterprise risk. National ban on borrowing between enterprises and enterpr

38、ises, if each other to borrow money and contract interest, the court visual situation to confiscation of interest in accordance with the law, to the other party should be fined equivalent of bank interest, therefore, easy lending between enterprises due to a lack of lending in the enterprise qualifi

39、cation and folk lending risk. Second, folk lending institutions, the trend of the folk lending subject including underground Banks, pawn shops, auction houses, small and medium-sized enterprise financing companies, small and medium-sized enterprise loan companies, asset appraisal, some basic bank wi

40、ll also become one of the main body of folk lending.Therefore, the folk lending subject has limited qualifications, not all of the civil subject can become main body of the rights and duties of the private lending. So, in the folk lending legal relationship, the principal may bear the corresponding

41、risks due to its own inadequate. Folk lending risk regardless of the facts or legal actions are likely to cause, 5 民间借贷风险中英文对照外文翻译文献 change and eliminate the legal relationship, and have certain legal consequences. Are dissimilar, inner concepts, ideas, without legal consequences, because I just due

42、 to express themselves, just step into reality, I did not enter the range swayed by lawmakers? For the law, in addition to my behavior, I am not saving in”. Hegel said, shall bear legal consequences can be to peoples behavior. Any behavior inevitably lead to consequences, but not any behavior leads

43、to legal consequences. Private lending risk is to point to in the implementation of private lending, risk caused by act of misconduct or biased. It is important to note that because of the folk lending practices of misconduct or biased and the risk, not referring to the folk lending risk all the beh

44、avior main body, but to produce potential risks caused by borrowing risk, bear the unfavorable legal consequences that may lead to risk subject behavior caused by the risk. Private lending typical behavior risk is divided into private lending interest rate agreed over the provisions of the state sta

45、ndard of risk, risk posed by illegal engaged in financial business and malicious borrowing the risk, etc. Contract beyond the standards of the state interest rates caused by risk according to the views of Marxism, usury in essence it is a kind of economic phenomenon, its own has its inherent law of

46、development”. Illegal engaged in financial business risk caused by illegal engaged in financial business risk is to point to by the offender is not in accordance with the statutory procedures approved by the relevant departments, to the society is not in the name of any particular object of illegal

47、fund-raising, illegal absorbing public deposits or absorb public deposits in disguised forms, illegal loans and other illegal behavior and should bear the risk of financial business. 6 民间借贷风险中英文对照外文翻译文献 民间借贷风险研究 1 典型民间借贷风险类型化划分方法的反思 风险二象性不确定性与暴露,表明风险是客观实在与主观预期相背离的矛盾性关系,亦即因客观存在的不确定性而诱致实在与预期相悖的机会和可能性。

48、鉴于主观认识上的有限理性与客观信息获取的不完全性,风险规制( risk regulation的意旨要求“主体”须寻求方法论上的突破来弥补主观与客观的先天不足,类型化研究方法不失为最优选择。之所以有此功能,是因为“类型化方法的引进打破了抽象与具体在法学方法论上的二元对立,并迅速成为连接两者的中介”。具体而言,类型化具有抽象具体化、具体抽象化的功能,可打通主观与客观的“任督二脉”,缩减客观与主观的背离,进而有效地规制风险。又,民间借贷样式繁多、表征多样,其背后隐藏的风险亦尽显独特性,因此,民间借贷风险的法律规制需要以风险的类型化为基石,以保证风险规制的体系性、完备性及有效性。 从目前的研究来看,许

49、多学者已经采用类型化研究方法对民间借贷风险进行研究。譬如,诸多学者认为,正规金融是民间借贷不断深化发展,并对其进行规制的结果,究其根源,在货币资金融通方面来讲,两者几无差异。因此,在对民间借贷风险进行类型化划分的过程中,可借鉴新巴塞尔协议的规定,将民间借贷的风险划分为信用风险、操作风险、市场风险以及战略风险等类型; 亦有部分学者以民间借贷中存在的法律问题为依据,将民间借贷风险分为利率风险、身份风险以及用途风险;还有学者从私法与公法层面进行类型化划分,7 民间借贷风险中英文对照外文翻译文献 将其分为公法风险与私法风险;从金融体制、金融调控与金融规制三个方面进行研究等等。在更大程度上说,上述诸种风险类型划分方法更多是建立在金融行业内部特点的基础之上。但重要的是要注意不同行业、学科有不同的思维方式、重点和价值选择。在一定程度上,金融行业分类标准、管理标准与风险监管的要求并不完全符合法律规定。典型的民间借贷类型划分方法,大多是从金融或金融部门的角度出发,更侧重于具体的风险,虽然已经打上了名称,但没有实际的打

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