合會(huì)合同制度研究
發(fā)布時(shí)間：2019-07-09 13:51
【摘要】：合會(huì)是流行于我國(guó)民間的融資暨儲(chǔ)蓄組織,它由發(fā)起人召集親朋好友定期參加聚會(huì),從成員間籌措資金,通過一定的方式輪流交與每位成員使用完畢。合會(huì)依賴于地緣和親緣,憑借成員間的信用來維持合會(huì)的運(yùn)行,其方式具有靈活性,深受廣大民眾的歡迎。現(xiàn)階段,我國(guó)的合會(huì)是否合法,其法律屬性歸屬,尚存在爭(zhēng)議,合會(huì)所面臨的法律風(fēng)險(xiǎn)和困境也有待分析和解決。本文第一部分引文,開篇簡(jiǎn)要論述合會(huì)研究的意義及本文的研究方向。第二部分通過介紹合會(huì)的起源和運(yùn)作機(jī)制,展示了合會(huì)是作為一種民間融資方式的內(nèi)在本質(zhì),歸納合會(huì)的特征即存在的正面作用和負(fù)面缺點(diǎn),列舉不同情形下的合會(huì)類型。第三部分評(píng)析合會(huì)的法律關(guān)系,首先是比對(duì)了合會(huì)與非法集資的差別,論證合會(huì)的法律關(guān)系是合法的民事平等主體之間的合同關(guān)系,在大陸合同法體系中應(yīng)屬于無名合同。進(jìn)一步論證合會(huì)合同成立的主客體要件,評(píng)述要件缺失情形對(duì)合會(huì)合同的效力影響。最后簡(jiǎn)明概括一般合會(huì)中會(huì)首與會(huì)員的基本權(quán)利義務(wù)。第四部分,合會(huì)法律關(guān)系存續(xù)面臨主要的法律風(fēng)險(xiǎn)在于違約帶來的倒會(huì)風(fēng)險(xiǎn),通過合會(huì)倒會(huì)情形的實(shí)證分析,歸納合會(huì)合同履行過程風(fēng)險(xiǎn)產(chǎn)生的內(nèi)部原因系會(huì)首的權(quán)利、義務(wù)匹配失當(dāng),會(huì)員的權(quán)利保障不足、信息不對(duì)稱等,外部成因系司法、監(jiān)管理念,造成合會(huì)糾紛缺乏司法途徑解決,缺失合會(huì)失信懲戒機(jī)制。為解決合會(huì)的風(fēng)險(xiǎn),從合會(huì)法律關(guān)系內(nèi)部中應(yīng)當(dāng)重點(diǎn)針對(duì)會(huì)首的地位和權(quán)利義務(wù)、信息披露機(jī)制進(jìn)行合理的設(shè)計(jì),試論證會(huì)員利用我國(guó)債權(quán)保全制度中的抗辯權(quán)和撤銷權(quán)來對(duì)抗合會(huì)中的違約等不法侵害利益行為。本文第五部分,承接前文,針對(duì)合會(huì)合同的風(fēng)險(xiǎn),外部的一大原因乃司法救濟(jì)不力,通過當(dāng)前我國(guó)合會(huì)合同的相關(guān)案例評(píng)析,指出我國(guó)在此領(lǐng)域司法裁判存在法律關(guān)系認(rèn)識(shí)錯(cuò)誤,司法裁判民刑不分、尺度混亂的問題,提出近期未能立法的情況下,在目前現(xiàn)狀下通過引入習(xí)慣法淵源和無名合同的法律適用的方式,將合會(huì)合同民事糾紛納入到我國(guó)現(xiàn)有的民商事審判法律體系中,積累審判經(jīng)驗(yàn),從而正確引導(dǎo)合會(huì)法律關(guān)系的構(gòu)建,為立法提供實(shí)踐借鑒,促進(jìn)合會(huì)的健康發(fā)展,服務(wù)我國(guó)經(jīng)濟(jì)。本文第六部分是結(jié)語(yǔ),簡(jiǎn)單總結(jié)了本文的觀點(diǎn)。
[Abstract]:The club is a financing and savings organization popular in our country. It is used by the sponsors to gather their relatives and friends regularly, raise funds from among the members, and take turns to each member in a certain way. The club relies on geography and kinship, and relies on the credit of its members to maintain the operation of the club in a flexible manner and is welcomed by the general public. At present, there is still a dispute over whether the consortia in our country are legal or not, and the legal risks and dilemmas faced by the consortia still need to be analyzed and solved. The first part of this paper citation, the first part briefly discusses the significance of community research and the research direction of this paper. The second part introduces the origin and operation mechanism of the union, shows the inherent essence of the union as a kind of private financing mode, sums up the characteristics of the union, that is, the positive effects and negative shortcomings, and enumerates the types of the union under different circumstances. The third part analyzes the legal relationship of the association, first of all, it compares the difference between the union and the illegal fund raising, and demonstrates that the legal relationship of the union is the contractual relationship between the legitimate civil equal subjects, which should belong to the nameless contract in the mainland contract law system. This paper further demonstrates the subject and object elements of the establishment of the union contract, and comments on the influence of the absence of the elements on the effectiveness of the union contract. Finally, the basic rights and obligations of the head and members of the general club are briefly summarized. In the fourth part, the main legal risk of the survival of the union legal relationship lies in the reverse risk caused by breach of contract. Through the empirical analysis of the situation of the union meeting, it is concluded that the internal causes of the risk in the process of the performance of the union contract are the rights of the association, the improper matching of obligations, the insufficient protection of the rights of the members, the asymmetry of information, etc., the external causes are the administration of justice and the concept of supervision, resulting in the lack of judicial means to resolve the disputes. There is a lack of a disciplinary mechanism for breach of trust. In order to solve the risk of the association, we should focus on the status and rights and obligations of the head of the association in the legal relationship of the association, and carry out a reasonable design of the information disclosure mechanism, and try to demonstrate that the members use the right of defense and cancellation in the system of the preservation of creditor's rights to counter the illegal infringement of interests such as breach of contract in the association. The fifth part of this paper, in view of the risk of the union contract, one of the main external reasons is the lack of judicial relief. Through the current analysis of the relevant cases of the joint association contract in our country, it is pointed out that there are some problems in the judicial adjudication in this field, such as the wrong understanding of the legal relationship, the lack of distinction between the judicial adjudication and the civil punishment, and the confusion of the scale, and puts forward the situation that the legislation has not been legislated in the near future. Under the present situation, by introducing the origin of customary law and the legal application of nameless contract, the civil disputes of union contract are brought into the existing legal system of civil and commercial trial in our country, and the trial experience is accumulated, so as to correctly guide the construction of the legal relationship of the association, provide practical reference for legislation, promote the healthy development of the association and serve the economy of our country. The sixth part of this paper is the conclusion, which briefly summarizes the views of this paper.
【學(xué)位授予單位】：浙江大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D923.6
本文編號(hào)：2512188
[Abstract]:The club is a financing and savings organization popular in our country. It is used by the sponsors to gather their relatives and friends regularly, raise funds from among the members, and take turns to each member in a certain way. The club relies on geography and kinship, and relies on the credit of its members to maintain the operation of the club in a flexible manner and is welcomed by the general public. At present, there is still a dispute over whether the consortia in our country are legal or not, and the legal risks and dilemmas faced by the consortia still need to be analyzed and solved. The first part of this paper citation, the first part briefly discusses the significance of community research and the research direction of this paper. The second part introduces the origin and operation mechanism of the union, shows the inherent essence of the union as a kind of private financing mode, sums up the characteristics of the union, that is, the positive effects and negative shortcomings, and enumerates the types of the union under different circumstances. The third part analyzes the legal relationship of the association, first of all, it compares the difference between the union and the illegal fund raising, and demonstrates that the legal relationship of the union is the contractual relationship between the legitimate civil equal subjects, which should belong to the nameless contract in the mainland contract law system. This paper further demonstrates the subject and object elements of the establishment of the union contract, and comments on the influence of the absence of the elements on the effectiveness of the union contract. Finally, the basic rights and obligations of the head and members of the general club are briefly summarized. In the fourth part, the main legal risk of the survival of the union legal relationship lies in the reverse risk caused by breach of contract. Through the empirical analysis of the situation of the union meeting, it is concluded that the internal causes of the risk in the process of the performance of the union contract are the rights of the association, the improper matching of obligations, the insufficient protection of the rights of the members, the asymmetry of information, etc., the external causes are the administration of justice and the concept of supervision, resulting in the lack of judicial means to resolve the disputes. There is a lack of a disciplinary mechanism for breach of trust. In order to solve the risk of the association, we should focus on the status and rights and obligations of the head of the association in the legal relationship of the association, and carry out a reasonable design of the information disclosure mechanism, and try to demonstrate that the members use the right of defense and cancellation in the system of the preservation of creditor's rights to counter the illegal infringement of interests such as breach of contract in the association. The fifth part of this paper, in view of the risk of the union contract, one of the main external reasons is the lack of judicial relief. Through the current analysis of the relevant cases of the joint association contract in our country, it is pointed out that there are some problems in the judicial adjudication in this field, such as the wrong understanding of the legal relationship, the lack of distinction between the judicial adjudication and the civil punishment, and the confusion of the scale, and puts forward the situation that the legislation has not been legislated in the near future. Under the present situation, by introducing the origin of customary law and the legal application of nameless contract, the civil disputes of union contract are brought into the existing legal system of civil and commercial trial in our country, and the trial experience is accumulated, so as to correctly guide the construction of the legal relationship of the association, provide practical reference for legislation, promote the healthy development of the association and serve the economy of our country. The sixth part of this paper is the conclusion, which briefly summarizes the views of this paper.
【學(xué)位授予單位】：浙江大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D923.6
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