小额贷款公司在中国的法律问题和改进建议[摘要]:近年来,在我国逐步发展小额信贷，对于盘活民间资本，促进经济发展具有积极的意义。
但是由于小额贷款公司在我国还处在发展初期,相应的法律条款和规定还不够完善，仍有一些法律问题，像进入门槛高、监管机构不清楚、风险控制能力差。
这都制约了小额贷款公司的发展。
为小额贷款公司的发展创造一个良好的法律环境,对于促进小额贷款公司健康可持续发展有积极意义。
[关键词]:小额贷款公司；法律风险的表现形式；监督管理机构2008年中国银监会、央行联合下发了《小额贷款公司试点指导意见》,小额贷款公司试点迅猛发展。
2009年4月份,中国银行业监督管理委员会发布了一个《小额贷款公司成立农村银行重组暂行规定》为小额贷款公司的指出了方向。
到2010年10月底已经我国已成立的小额贷款公司已达到2348家。
经过几年的发展,小额贷款公司在改善农村金融服务,解决中小企业融资难等方面起到了积极的作用。
1 小额贷款公司的地位1.1小额贷款公司的性质和组织结构小额贷款公司是由自然人、企业法人与其他社会组织投资设立，不吸收公众存款，经营小额贷款业务的有限责任公司或股份有限公司。
小额贷款公司是企业法人，有独立的法人财产，享有法人财产权，以全部财产对其债务承担民事责任。
小额贷款公司股东依法享有资产收益、参与重大决策和选择管理者等权利，以其认缴的出资额或认购的股份为限对公司承担责任。
小额贷款公司应执行国家金融方针和政策，在法律、法规规定的范围内开展业务，自主经营，自负盈亏，自我约束，自担风险，其合法的经营活动受法律保护，不受任何单位和个人的干涉。
1.2小额贷款公司存在的意义小额贷款公司主要解决一些小额、分散、短期的资金需求，是专门面向农村和中小企业开展贷款业务的公司。
其存在和发展具有重大的作用和意义。
主要体现在以下几个方面：第一，小额贷款公司具有机制灵活、手续简便、无需抵押、无需担保、放贷速度快等商业银行无法比拟的优势，可以更好地为农村和中小企业提供金融贷款服务，解决其生存和发展过程中融资难的问题。
第二，小额贷款公司的存在有利于疏导、吸引民间资本，解决民间信贷混乱的状况，实现民间金融向正规金融过渡。
第三，有利于加大扶贫力度，促进农村经济的发展和社会主义社会的繁荣稳定发展。
2 小额贷款公司主要的法律问题小额贷款公司近年来取得了爆炸性增长,成为中国信贷市场重要的组成部分和补充力量。
但也有一些商业法律问题。
2.1创办小型贷款公司有法律漏洞银监会和央行发布的《关于小额贷款公司试点的指导意见》规定：“申请设立小额贷款公司，应向省政府主管部门提出正式申请，经批准后，到当地工商行政管理部门申请办理注册登记手续并领取营业执照。
”从形式上说小额贷款公司的经营资格批准属于一项行政许可。
结合《意见》的规定，使这一行政许可缺少了法律依据。
因为依据《行政许可法》规定，设立行政许可的主体，应是法律、行政法规、地方性法规，若以上主体都没有规定，确需要立即实施行政许可的，可以由省、自治区、直辖市人民政府规章设立临时性行政许可。
小额贷款公司仅由《意见》来确定行政许可是缺少法律依据的。
2.2小额贷款公司的监管不清在实践过程中，监管缺乏统一的科学标准，各地对监管主体到底从哪些方面进行监管没有统一口径。
上述诸多问题、造成了对小额贷款公司的多头监管或监管空白，使监管在操作上失去了可操作性，流于形式。
一个新兴事物一旦监管出现了混乱，就会使竞争无序化，甚至导致一些不法分子钻法律的空子，对于小额贷款公司来说，阻碍了其发展，也不利于国家经济的稳定与发展。
随着试点的运行逐步走向轨道，这种监管模式需要得到进一步的修改。
2.3小额信贷制度的风险小额贷款公司的服务对象是三农产业和小企业，服务对象的规模偏小，他们大都信用等级差，资质不佳。
在实际操作中，一些小额贷款公司自身规章不健全，管理不规范，工作人员缺少必要的专业知识，在面对农村整体信用制度不健全的大环境下，使原本就存在高风险的小额贷款公司的抗风险能力显得更加单薄了。
3促进小额贷款公司发展的建议3.1明确小额贷款公司的具体性质我国小额贷款公司试点已经有5年，小额信贷机构的试点办法公布也已3年。
但是社会对小额贷款公司的认识到仍未形成共识。
到目前为止，小额贷款公司还不作为金融机构，所以，不能享有国家农村金融的一系列的优惠政策。
据业内人士透露，有部分小贷公司包括营业税、所得税等等，税率高达33%。
性质不明是小额贷款公司的发展的第一大风险。
所以，需要明确小额贷款公司金融机构的性质。
3.2为小额贷款公司专门立法小额贷款公司作为一个新生事物，在我国的发展还处于起步阶段，有关法律还很不完善，这就要求社会各方面为其发展创造良好的法律环境，加快《小额贷款公司法》的出台。
在立法中应明确小额贷款公司的性质，规范设立制度，确定具体主管机关。
并且，在出台专门法的同时，国家应注意各法律法规之间的协调，对其规定有不一致的地方应该进行必要的修改，以促进小额贷款公司的进一步发展。
3.3提高风险控制能力小额贷款公司应进一步完善公司治理结构，制定有效可行的公司规章制度和实施办法，聘请具有专门知识的人才，加强对职工的业务培训，建立健全风险保障金制度。
政府和相关部门应逐步建立信用评级和激励机制，提高小额贷款者的还款意识。
现阶段，小额贷款公司只能以自有的资金发放贷款，并且“只贷不存”，不能吸收存款。
但投资者的资金毕竟有限，资金不足是小额信贷机构另一大发展瓶颈。
对此，符合条件的小额贷款公司可以升格为村镇银行。
同时，政府可以适时适度地放宽小额贷款公司的融资渠道，逐步允许少量经营业绩好、信用记录优的小额贷款公司通过同业拆借、吸收存款等方式扩大资金来源，也可以与具有一定资金实力的民营企业合作，扩大融资渠道，提高小额贷款公司的风险控制能力，确保其可持续性发展。
[Abstract]: In recent years the company gradually developed microfinance. In our economy on the specifications of its private capital, and promote economic development has a positive meaning. But because of its still in trial stage, the current number of small loan companies on the basic provision or provisions of the problem is still not yet unreasonable. there are still some legal issues: the creation of the high threshold, the regulatory body is not clear, low risk control. This will become a bottleneck restricting its development. In order to promote small loan company health y and sustainable development, favorable to the development of small loan companies recommended: small loans for the development of the company to create a good legal environment, specifically the regulation of small loan companies and improve their own small loan company risk control capability.[Keywords]: small loan companies, legal risk, regulatory bodyIn 2005, the small loan company in Inner Mongolia, Shanxi, Shaanxi, Guizhou, Sichuan Province, five May starts .2008 CBRC, the central bank jointly issued <"On the small loan company pilot guidance>>, small loan company the rapid development of a trial basis in April In 2009, China Banking Regulatory Commission issued a <<small loan company set up rural banks restructuring Provisional Regulations>> the small loan company pointed out the direction. As of the end of October 2010 has set up a small country Loan Company 2348. After several years of practical work, small loan companies made a good social effect in improving rural financial services, to resolve the difficult problem of SME financing has played a positive role.1. The status of small loan companies1.1 The nature of small loan companies and structureMicrofinance refers to the lower-middle class devoted to the continued provision of micro-credit services activities. Small loan company, is defined as natural persons, legal persons and other social organizations, enterprises invested in, does not absorb public funds, small business lending limited liability company or limited.Small loan company is the enterprise legal person, independent of the corporate property, and all the property of their civil liability for its debt s. Microfinance assets of the shareholders entitled to return to their rights and right to participate in major decisions and select the right managers, its subscribed capital contributions or the extent of its subscribed shares of the company responsible.Small loan companies should implement the country's financial policies and financial policies, Law s and regulations to the extent permitted business, autonomous, self-discipline, self-financing, at their own risk, its legitimate business activities protected by Law.1.2 The significance of the existence small loan companySmall loan company to solve some small, scattered, short-term funding needs, is designed specifically for SMEs in rural and lending companies. The existence and development has a vital role and significance. Mainly in the following areas: First, the small loan company has a flexible mechanism, simple procedures, without charge, without collateral, lenders and other commercial banks faster incomparable advantages to better serve rural and small and medium enterprises to provide financial loans to solve their survival and development the process of financing difficulties. Secondly, the existence of small loans help ease the company to attract private capital to address the credit chaos of civil status, to achieve formal financial transition to private finance. Third, to the intensification of poverty, and promote rural economic development and prosperity and stable development of socialist society.2. Small loan companies are the main legal issuesSmall loan company achieved explosive growth in recent years, China's credit market is an important part and added strength. But there are also some of its business legal issues.2.1 The establishment of small loan companies there are legal loopholesChina Banking Regulatory Commission and the central bank's <"On the small loan company pilot guidance>> states:" The application for the establishment of small loan companies, government departments should make a formal request for approval to the local administrative department for industry and commerce to apply for registration procedures and obtain a business license. "Formally qualified small business loans approved in the company as an administrative permit. with <<view>> requirements to enable the legal basis for the lack of administrative licensing. Since, by << Administrative Licensing Law>> was set up by the main body of the administrative licensing should be Law s, administrative regulations, local regulations, if the above subject are not required, do need to immediately implement an administrative license, can the provinces, autonomous regions and municipalities to establish rules and regulations temporary administrative licenses. small loan company only by the <<view> "to determine the administrative licensing is the lack of legal basis.In addition, the establishment of small loan companies high threshold. According to the provisions of small loan company the main sponsor of the "net assets of not less than 5,000 yuan (less developed counties of not less than 20 million yuan, asset-liability ratio no higher than 70% , consistent earnings and a total profit of 1500 million (a minimum of 600 underdeveloped counties yuan ", the company provides small loans to ensure risk control ability, but to discourage a lot of investment intermediaries. This leads to a lot of intangible investment intermediaries transformation in the direction of the underground banks, which will be detrimental to our financial stability and development.2.2 The regulation of small loan companies is not clear<<View>> said "Those who can clear a provincial government authorities (Office of or related financial institutions) is responsible for the supervision of the management of small loan companies, and small loan companies willing to take responsibility for risk treatment, only in the province ( regions and municipalities) of the county set up within the context of small loan company pilot. "micro-loan company that is designated by the provincial government's Provincial Financial Office or relevant agencies responsible for supervision and management, and bear the possible loss of the pilot failed, but the above do not have the qualifications of the main administrative body. In practice, the "relevant institution" in the end is what agencies, so far, there is no a clear legal provisions for this. Moreover, the lack of a unified scientific regulatorystandards around the in the end of the regulatory body to regulate what is not from one voice. the many problems caused by small loan companies for long gaps in regulation or supervision, to monitor the operation lost maneuverability, a mere formality. Once a new thing regulation out of whack, it will make the competition disorder, and even lead to some legal loopholes criminals drill for small loans companies, hindered its development, is not conducive to national economic stability and development. With the pilot gradually running track, this regulatory approach needs to be further changes.2.3 micro-credit system, risk2.3.1 the use of funds small loans without effective constraint mechanism. The one hand, micro-credit fund management difficult, loans for household, small amount of money, credit and human and there is any credit problems. Another On the one hand, a considerable part of farmers to micro-credit funds free for other purposes, even as money to help the poor free of charge, on how to use micro-credit funds is the lack of technical support and confidence.2.3.2 microfinance funds withdrawn from circulation the lack of reliable protection mechanisms. Microfinance loan recovery cases, depending on household income. Due to lack in-depth understanding of the project, the project can not be implemented as originally envisaged, or suffered natural disasters, resulted in unsustainable losses, farmers have no way to repay the loan on schedule, micro credit funds of the mills will be difficult to guarantee.2.3.3 the operation of microfinance lack of an effective compensation mechanism. Microfinance interest rates in China are strictly limited, the interest rate is usually lower than normal interest rate commercial loans, small loan companies which manage costs and stay high conflicting cost of bad debts, so the micro-credit operation is difficult to effective remedies. To make the sustainable development of small loan companies, the need to support the Government to provide compensation.In addition, small loan company provides services to three rural industries and small enterprises, small-scale clients, most of them poor credit rating, poor qualifications. In practice, a number of small loans to the company's own rules and regulations are not sound, management non-standard, the staff lack the necessary expertise, in the face of the rural credit system is not a sound overall environment, to an already high risk of small loan companies even more anti-risk ability to thin out. Links to free papers Download Center 3. Promote the development of the proposed small loan company3.1 clearly the specific nature of small loan companiesPilot of small loan companies have been 5 years, microfinance institutions have also announced a pilot approach for 3 years. But the community's understanding of small loan companies to reach aconsensus yet. So far, small loan companies are not as financial institutions, therefore, not entitled to state a series of preferential policies for rural finance. For example, do the same rural finance, and if financial institutions, commercial banks will be included business tax relief, etc., but the small loan companies, for most provinces in that no such concessions. According to industry sources, some small companies, including business tax credits, income tax, etc., the tax rate as high as 33%. The expectations of society and the government has the burden of microfinance institutions do not assume the light of social responsibility. nature is unknown the development of small loan company the largest risk. Therefore, small loan companies need to be clearly the nature of financial institutions.3.2 The special legislation for the small loan companySmall loan company as a new phenomenon in China's development is still in its infancy, the Law is far from perfect, which calls for all sectors of society to create a favorable legal environment, speed up <<small loans Law>> the introduction.The central bank, China Banking Regulatory Commission jointly issued the <<view>> and the China Banking Regulatory Commission to develop the <<Interim Provisions on Administering Loan Companies>> all small loans to the company's operations on the proposed program of specific guidance, but the legal hierarchy between the two is too low, supporting imperfect laws and regulations. As a pilot operation, States should, where the introduction of <<small loans Law>> and other high-order special laws to regulate the small loan companies.Should be clear in the legislation the nature of small loan companies, standard to establish a system to identify specific authority. And, in the introduction of special laws, the state should pay attention to coordination between the various laws and regulations, there are inconsistencies in its provisions should be necessary modifications, to promote the further development of small loan companies.3.3 Strengthening the supervision of small loans companyFirst, we must determine the company's director of microfinance regulatory body. The competent department authorized by law subject to the company's access to small loans, the company running the operation and exit of all the regulatory process. At present, the pilot micro-credit inthe country the company's regulatory body as large as the following: First, by the Finance Officeis responsible for monitoring, and second, by the People's Bank is responsible for monitoring the establishment of three new independent body responsible for monitoring and fourth, the banking supervision department is responsible for supervision. With the small the amount of loans the company gradually enriched the experience of the pilot, the Government should monitor to measure the pros and cons of various regulatory body, legal form to be finalized, to regulate thesmall loan companies.Secondly, to strengthen industry self-regulation. Government regulation is important, but with the small loan company matures, the accumulation of experience, the Government should weaken its regulatory efforts, can play a role in macroeconomic regulation and control can be. And industry regulation should be gradually become the main form of supervision .2011 year, China will set up a joint microfinance institutions, and its micro-credit institutions by the national nonprofit initiative established by self-regulatory organization. Its establishment is conducive to China's microfinance industry standards and can be sustainable development. microfinance institutions in the future should be based on Joint Committee on the small loan companies as the main regulatory body, to play a greater oversight role.Third, strengthen cooperation in banking regulation and public oversight. Cooperative banks also control the operation of small loan company funds between all of the information, local cooperative banks in the choice at the same time determine the cooperative banks have the responsibility of monitoring small loan company. While strengthening social supervision . that local governments can establish the system of reporting prize, for the presence of illegal fund-raising, violent noisy in the small loan companies reporting prizes, arouse the enthusiasm of social supervision.3.3 The ability to improve risk controlSmall loan companies should further improve the corporate governance structure, develop effective and feasible implementation of company rules and regulations and ways to employ people with expertise to enhance the business training of staff, establish and improve risk protection fund system. The Government and relevant departments should gradually establish credit rating and incentives to improve awareness of small borrowers to repay. At this stage, small loan companies can only own capital loans, and "only the credit does not exist" and can not absorb the deposits. But investors funds After all, limited, lack of funds is another major development of microfinance institutions bottleneck. In this regard, small loan companies eligible for the rural banks can be upgraded. Meanwhile, the Government can timely and appropriately relax the financing channels for small loan companies, and gradually allow the small business performance is good, excellent credit history of small loan companies through lending, deposits and other funding sources to expand, but also with a certain financial strength of private enterprises, and expand financing channels for small loan companies to improve risk control to ensure its sustainable development. Links原文地址：/?i296785_Small-loan-company-in-China-Legal-Problems-and-Suggestions-for-Improvement。