● In order to protect the legitimate rights and interests of financial consumers, standardize the behavior of financial institutions in providing financial products and services, maintain a fair and just market environment, and promote the healthy and stable operation of financial markets, the central bank recently issued the "Implementation Measures for the Protection of Financial Consumers’ Rights and Interests of the People’s Bank of China (Draft for Comment)", which is open to the public for comments.
● With the rapid development of the financial industry, especially the Internet finance, ordinary people borrow in a wider range and in more ways, which gradually exposes some problems existing in the debt collection industry.
● To standardize the debt collection industry, it is necessary to establish unified norms and requirements for the qualification, collection process and follow-up evaluation of collection agencies, and at the same time draw a red line and clarify the punishment measures. In addition to further improving relevant systems, we should also form an all-round regulatory framework, including defining regulatory agencies and regulatory rules.
Our reporter Du Xiao
Intern of our newspaper, Yang Meijie
In order to protect the legitimate rights and interests of financial consumers, standardize the behavior of financial institutions in providing financial products and services, maintain a fair and just market environment, and promote the healthy and stable operation of financial markets, the central bank recently issued the Implementation Measures of the People’s Bank of China for the Protection of Financial Consumers’ Rights and Interests (Draft for Comment) (hereinafter referred to as the Draft for Comment), which is open to the public for comments, and the deadline for feedback is January 25th.
The "Draft for Comment" intends to stipulate that financial institutions shall not collect debts from financial consumers in a way that violates laws and regulations, social ethics or harms the public interests, and shall not harm the legitimate rights and interests of financial consumers or third parties. Where a financial institution entrusts a third party to recover debts, it shall explicitly prohibit the trustee from using the recovery method mentioned in the preceding paragraph in a written agreement, and supervise the trustee’s collection behavior.
In recent years, with the development of social economy, the consumer credit market has also expanded rapidly, and the subsequent problem of third-party debt recovery has increasingly attracted social attention. In this regard, the "Legal Daily" reporter interviewed.
There are many problems in debt collection.
Violent collection is suspected of breaking the law
Recently, some users complained on the consumer service platform of a well-known website that a bank’s credit card was harassed by third-party collectors after it was overdue. On the same day, two people who claimed to be authorized by a bank went to the door to collect money directly and made a loud noise in the corridor of the community. After the user refused to open the door, one of them held up a video of his mobile phone, saying that the user refused peace talks and had a bad attitude.
The user thinks that he owes money to the bank, and the bank has not told him to authorize a third party to collect money, let alone what power the bank has to authorize?
The "Legal Daily" reporter noted that this situation is not a case. Some users complained that a loan company said, "I am constantly harassed and collected by phone" and "I give my personal privacy information to other collection companies". "App is a overlord clause, and I don’t agree to read the address book or personal privacy information and don’t allow it to be used".
Some users complained about a large-scale online platform consumer loan, saying: "I borrowed money in installments on a certain platform, and the repayment amount in this period was 4,114.89 yuan, which was three days overdue because my salary was not paid in time. Many times, I negotiated with a certain platform that the repayment plan was fruitless. I directly asked for a collection and added me to WeChat, threatening me to violently collect it. "
According to the statistics of payment business released by the central bank, as of the end of the third quarter of 2019, the total amount of bank card credit nationwide was 16.99 trillion yuan, an increase of 4.11% from the previous month; The total outstanding credit of credit cards overdue for half a year was 91.916 billion yuan, accounting for 1.24% of the credit balance of credit cards, accounting for an increase of 0.08 percentage points compared with the end of last quarter.
Yin Zhentao, deputy director of the Law and Finance Research Office of the Institute of Finance of China Academy of Social Sciences, believes that with the rapid development of the financial industry, especially internet finance, ordinary people borrow more and more ways, which gradually exposes some problems in the debt collection industry.
The reporter of "Legal Daily" searched a large credit inquiry website with "collection" as the key word and found that many companies provide this service. At the same time, the problem of violent collection has attracted increasing social attention.
On October 21, 2019, 51 credit cards, a Hong Kong-listed company, were raided by the police at their office in Hangzhou. In the evening, the Hangzhou police issued a notice saying that the reason why the 51 credit card was raided was that the outsourcing collection company entrusted by it pretended to be a state organ and used soft and violent means such as intimidation and harassment to collect debts, which was suspected of causing trouble.
The founder of 51 Credit Card made a voice on the personal Weibo and apologized, saying that "because of our imperfect management, especially the lack of training and supervision of cooperative companies, there were some excessive behaviors in the process of contacting and communicating with borrowers".
Judging from the related cases uncovered in recent years, the impact of violent collection is very bad.
On March 28, 2019, Haikou Intermediate People’s Court held a public hearing in accordance with the law to hear 18 cases involving Zhao Jianhao and others. It is understood that the main members of the organization are stable, with a clear division of labor and distinct levels. Under the cover of setting up a small loan company, loans are used to support the black, and loans are protected by the black. Through the mode of "routine loans" and "underground law enforcement teams", illegal loans, violent collection and employment are used to help others collect execution accounts, and many criminal activities such as robbery, extortion and trouble-making are organized, involving 247 million yuan.
In July 2019, the police in Fuzhou, Jiangxi Province cracked a new type of black-related and evil-related case that threatened by sending wreaths and urns, thus achieving dunning and defrauding money. On July 4, Mr. Li, a citizen of Taicang City, Jiangsu Province, received a strange phone call saying that he would send a wreath and an urn to his home. Mr. Li, who had used online loans, immediately reported the case to the police. After investigation by the local police, it was found that the borrower was He Mou, a native of Linchuan, Fuzhou. On July 18, the police of the Criminal Investigation Brigade of Linchuan Branch of Fuzhou Public Security Bureau arrested the people involved by arranging.
In the interview, Professor Liu Shaojun, director of the Financial Law Research Center of China University of Political Science and Law, believes that the existence of illegal lending institutions is one of the reasons for the debt collection industry problems.
Lack of collection industry norms
In a state of gray survival
The Draft for Comment intends to stipulate that financial institutions should establish and improve the whole process control mechanism involving the protection of financial consumers’ rights and interests, and ensure the effective implementation of the relevant provisions and requirements of the protection of financial consumers’ rights and interests in all business links such as the design and development, marketing promotion and after-sales management of financial products and services.
"Illegal lending institutions clearly know that borrowers have no repayment ability, but also lend, the purpose is to plunder the borrower’s property, which belongs to predatory lending. It can be said that most illegal lending institutions have adopted such a form of" routing loan ". There are also some small loan companies, the lending process is not strict, as newly established financial institutions, risk management is not in place, which leads to a higher non-performing loan rate. Such financial institutions have a strong collection of loans, and sometimes they will take some unconventional measures, which is also a reason for the violent debt collection. " Liu Shaojun said.
In addition to the lenders, Liu Shaojun believes that some borrowers’ underestimation of loan risks and eventual inability to repay are also important reasons for violent debt collection.
"As far as corporate loans are concerned, some corporate borrowers blindly develop and expand. As long as financial institutions lend them money, they dare to borrow as much as possible. As business operators, they should predict the future risks, but many business operators have obvious defects in this respect. For some ordinary borrowers, the risk of borrowing is also underestimated. For example, some young people, no matter how many loans they make at will, do not consider their repayment ability, which may also cause more serious problems. " Liu Shaojun said.
Liu Shaojun told the reporter of the Legal Daily that there are still some people who exploit the loopholes in the social credit system, such as deliberate evasion of debts, which has led to an abnormal development track of the debt collection industry for various reasons.
Yin Zhentao believes that the core problem of debt collection industry is the lack of clear rules. The problem of collection is indeed inevitable in the development of the financial industry, which is closely related to social stability and the rule of law. Without clear rules, the debt collection industry is not easy to get on the right track. "The existing standards or norms for debt collection are not very systematic and lack more authoritative provisions."
"From a legal point of view, there are no specific provisions for debt collection at present. It can only be said that there are some scattered and emergency provisions in criminal law and civil law, and there are no systematic provisions. For a long time in the past, debt collection was in a state of gray survival, and basically no one recognized it as an industry. Only when the collection behavior constitutes a crime will it be regulated and punished. If the collection behavior does not constitute a crime, it can be said that it is in a blind spot of supervision. " Liu Shaojun said.
Improve the system and strengthen supervision.
Promote the benign development of the industry
Before the release of the "Draft for Comment", the relevant departments have repeatedly issued relevant regulations to vigorously regulate the debt collection industry.
As early as 2009, the former China Banking Regulatory Commission issued the Notice on Further Regulating Credit Card Business, which stipulated that banking financial institutions should prudently implement outsourcing of collection. Banking financial institutions that implement the outsourcing of collection should establish corresponding business management systems, and specify the selection criteria, business training, legal responsibilities and economic responsibilities of the collection outsourcing institutions. The selected collection outsourcing institutions should be reviewed and approved by the senior management of the domestic headquarters of the institution, and a collection outsourcing contract with perfect management and clear responsibilities should be signed, and the commission should not be paid simply by way of royalty from the amount recovered from arrears.
At the same time, it is stipulated that banking financial institutions should continue to pay attention to the financial status, personnel management, business processes, work conditions and complaints of the collection outsourcing institutions, so as to ensure that the collection outsourcing institutions carry out relevant business in accordance with the management requirements of their own institutions. If the collection outsourcing agency damages the legitimate rights and interests of debtors or other relevant personnel due to poor management of collection outsourcing, banking financial institutions shall bear the corresponding outsourcing risk management responsibilities. The regulatory authorities will investigate the responsibilities of relevant banking financial institutions and personnel according to the situation, and take prudent regulatory measures such as ordering rectification within a time limit, restricting, suspending or stopping their new credit card issuance business, and implementing other corresponding administrative penalties according to the severity.
In 2017, the Office of the Leading Group for the Special Remediation of Internet Financial Risks and P2P Online Loan Risks issued the Notice on Standardizing and Rectifying the "Cash Loan" Business, requiring all kinds of institutions or entrusted third-party institutions not to collect loans through violence, intimidation, insult, defamation and harassment.
In October 2019, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice jointly issued the Opinions on Several Issues Concerning Handling Criminal Cases of Illegal Lending, which stipulated that in order to forcibly demand debts arising from illegal lending, intentional homicide, intentional injury, illegal detention, intentional destruction of property, and trouble-making should be punished for several crimes. Assembling, instigating, and hiring others to demand debts by means of harassment, entanglement, hubbub, and gathering people to create momentum, which does not constitute a crime alone, but the implementation of illegal lending has constituted the crime of illegal business operation, it shall be given a heavier punishment as appropriate in accordance with the provisions of the crime of illegal business operation.
Liu Shaojun believes that to promote the benign development of the debt collection industry, we must first recognize the existence of the debt collection industry and supervise and standardize it. With the development of social economy, the volume of debt collection will be relatively large, and there will be more business, which is actually an existing industry. The "Draft for Comment" issued this time has obvious positive significance for regulating the debt collection industry. In the future, it is necessary to further establish and improve the industry norms for debt collection.
Yin Zhentao believes that to standardize the debt collection industry, it is necessary to establish unified norms and requirements for the qualification, collection process and follow-up evaluation of collection agencies, and at the same time, to draw a red line and define the punishment measures.
"In addition to further improving relevant systems, it is also necessary to form a comprehensive regulatory framework, including clarifying regulatory agencies and regulatory rules." Yin Zhentao said that in the specific supervision and law enforcement process, scientific and technological means can be used to record and mark the collection process, so as to find problems in time, which is very necessary for regulating the debt collection industry.
Yin Zhentao suggested that the most important point of the "Draft for Comment" issued this time is to prohibit violent collection, strictly regulate the problems that may be involved in the debt collection process, and consider introducing special collection management measures in the future.
关于作者