民間借貸的風險控制一個制度變遷的視角

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

在控制違約風險和解決信息不對稱方面，中國古代關於民間借貸的法律制度體現出高度的制度理性，但以利率管制為核心的打壓高利貸的各種舉措卻因招致市場反彈而屢屢受挫。民間借貸的制度變遷在很大程度上由科技進步和經濟增長聯手推進，金融機構占據了消費性借貸的大部分市場，社會保障和商業保險分擔甚至替代了借貸市場的傳統避險功能，貸方資信調查能力和資金監管能力的提高減輕了債務追討對暴力強制的依賴，笞杖之刑以及''強牽財物''之類的逼債手段可以棄之不用，''役身折酬''也被高價值的抵押或質押取而代之。現代借貸制度因此表現出人性化和去暴力化的傾向。

"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."