First, correctly understand the behavior nature of civil servants participating in private lending activities. It should be an indispensable part of civil servants' social activities to carry out family financial management within the framework of laws, regulations and party discipline and promote the growth of property income.
First of all, the Civil Service Law and other major provisions on civil servants' participation in private lending. Article 53 of the Civil Service Law (14) stipulates that civil servants must abide by discipline, and shall not "engage in or participate in profit-making activities, or hold concurrent positions in enterprises or other profit-making organizations". Judging from legislative intent and judicial practice, this provision aims to prohibit civil servants from participating in profit-making business activities, which leads to the abuse of public power, but it does not prohibit civil servants from participating in legal economic activities such as private lending. The Supreme People's Court's "Notice" suggests: standardize civil servants' participation in private lending activities. In view of the problems found in the trial practice that some local civil servants participate in private lending, it is necessary to organize special forces to conduct special research on civil servants' participation in private lending activities in key areas, issue corresponding norms in time, resolutely crack down on high-interest lending or guarantee activities carried out by civil servants for profit, and severely punish violations of party discipline and state law in accordance with relevant policies and laws. Therefore, the focus of the current law and the proposal in the Notice is not whether civil servants can participate, but how to regulate their participation in private lending.
Secondly, local party committees and governments mainly explore ways to regulate civil servants' participation in private lending. In recent years, especially after the Supreme People's Court's judicial proposal was issued, public officials' participation in private lending has attracted great attention from some departments and regions. For example, Ningxia Autonomous Region adopted the "Three Prohibitions" to regulate the private lending activities of party member and state staff in the whole region to engage in, participate in, guarantee and protect high-interest and profit-making activities. The Hangzhou Municipal Commission for Discipline Inspection issued the "Opinions on Identifying the Nature of Party and State Organs' Illegal Shares", which divided all kinds of illegal shares into four categories according to the nature of mistakes, and defined the problems that are easy to be misunderstood. Wuyi county has also introduced four measures, including education, prevention, investigation and standardization, to strengthen the management of public officials' participation in private lending, illegal fund-raising and other illegal acts. However, on the whole, the regulations regulating civil servants' participation in private lending in various places are general but not specific enough, scattered and not systematic enough. In addition, the laws and regulations of the system are not effective, and the seriousness and operability are insufficient.
Second, participating in private lending has become an important way for civil servants to manage their family finances for a period of time. With the full implementation of social security, medical insurance, education, housing and other reform policies, especially the rapid rise of the overall price level in recent years, the desire of civil servants to participate in family financial management is becoming more and more urgent. At the same time, due to the continuous downturn in the stock market and the housing market in recent years, coupled with the continuous contraction of market liquidity in the country for more than two years, enterprises have increased their dependence on private capital, and they have attracted private capital by lowering the threshold, improving income and enhancing privacy protection. The scale of private lending in China has expanded rapidly and has become an important option for civil servants' family financial management. According to statistics, as of June 20 1 1, the balance of private lending in China was 3.8 trillion yuan, equivalent to 7% of the total bank loans, and the scale of private lending in Guangdong, Fujian and Zhejiang even reached 1/3 of that of state-owned banks. More than 60% of households in capital-active areas have participated in private lending, and in some areas, it has even reached more than 90%, and a considerable part of them are civil servants' families. In Wenzhou and other places, there are even reports that 80% of private lending funds are related to civil servant funds.
Three, the current outstanding problems of civil servants participating in private lending behavior. At present, the relevant legal provisions on civil servants' participation in private lending are relatively principled and broad, especially the lack of systematic disciplinary provisions at the party and state levels, which leads to inconsistent understanding and standards for legally carrying out private lending, and it is difficult to grasp and supervise qualitatively. In recent years, there have been frequent cases of civil servants illegally participating in private lending, which has greatly damaged the social image of the party and the government. Mainly as follows:
Cases of violation are frequent. In Jinhua alone, in recent years, leading cadres at or above the deputy bureau level have been investigated for criminal responsibility for illegally participating in private lending, including Cao, former deputy director of Jinhua Agriculture Bureau, Shao, former director of Jinhua Entry-Exit Inspection and Quarantine Bureau, Jin, former deputy director of District Transportation Bureau, former deputy detachment leader of Municipal Public Security Bureau, former member of the Standing Committee of Jindong District Committee, and Zhu, secretary of the Political and Legal Committee. In Wuyi County, there were also cases in which public officials such as Wang, a former cadre of the State Taxation Bureau, and Cheng, a former teacher of Wuyang Middle School, illegally participated in private lending, and the relevant personnel were punished by party discipline and state law.
The loan amount is huge. The average annual interest rate of private lending in Jinhua has been rising continuously in recent years, from 1 1.77% in 2008 to 17.42% in 20 12 years, and the annual interest rate of short-term working capital has reached more than 100%. Due to the strong market demand for loans, some leading cadres in party member took risks and illegally borrowed hundreds of thousands or even millions of yuan. For example, Chen Mou, the former deputy detachment leader of the fire brigade of Jinhua Public Security Bureau, used his position to lend more than 3 million yuan to the management object at an annual interest rate of 60%, making an illegal profit of 8.73 million yuan; Cheng Mou, the former teacher of Wuyang Middle School in Wuyi County, illegally raised more than 6 million yuan for gambling at an annual interest rate of 18% to 60% in the name of insufficient funds for a friend to set up a factory.
The borrowing process is hidden. Due to the particularity of the identity of public servants, both lenders and borrowers have formed the practice of keeping the identity of the parties confidential in practice for the sake of lending risks and self-protection. At present, although departments at all levels are vigorously promoting the property disclosure system for leading cadres, the participation of individuals (families) in private lending is not listed as compulsory. If an individual does not declare voluntarily, it is still difficult to fully verify his property and its source.
Social harm is enormous. On the one hand, the illegal participation of civil servants in lending has seriously damaged the image of the party and the government among the people, affected the credibility of power, disrupted normal working procedures, fostered unhealthy practices and affected social stability. On the other hand, it affects the economic and social order, damages the interests of the financial sector, causes the loss of state tax revenue and increases the burden on enterprises.
Fourthly, suggestions on regulating the civil servants' participation in private lending in China. To regulate civil servants' participation in private lending, we should adhere to the principles of complying with laws and regulations, seeking truth from facts, combining unblocking and blocking, and strictly regulating, and work hard to formulate specific disciplinary requirements and rules to find a supervision method suitable for China's national conditions.
(a) to formulate standardized, compulsory and enforceable disciplinary provisions for civil servants to participate in private lending. Paragraph 14 of Article 53 of the Civil Service Law stipulates that civil servants must abide by discipline, and shall not "engage in or participate in profit-making activities, or hold concurrent positions in enterprises or other profit-making organizations". The extension of "discipline" is not specific and clear, and the current party discipline also lacks detailed regulations. According to the investigation of disciplinary cases and judicial practice, the author suggests that the following points should be highlighted in formulating standardized, mandatory and enforceable disciplinary provisions for public officials' participation in private lending: 1 The funds for public servants to participate in private lending must be their own legal funds or family funds. 2. The loan interest rate must be less than four times the bank's similar loan interest rate (including interest rate); In ordinary private lending, the court does not protect the income that exceeds the interest rate of similar loans of banks by four times, but determines that civil servants accept the high interest of the managed object as bribery. Therefore, party discipline should prohibit civil servants from participating in high-interest lending. 3. Civil servants participating in private lending must sign standardized loan contracts with relevant personnel, and bear risks and enjoy rights and interests in strict accordance with the contract. It is not allowed to enjoy privileges such as priority payment when the enterprise has risks. Contract disputes should be resolved through legal channels according to law; Prevent, stop and resolutely punish illegal and untrustworthy behaviors that use public power to collect money in the name of lending. 4. Borrowing funds must comply with the relevant financial regulations, and must be transferred in the bank if it exceeds a certain amount. Special circumstances should be explained to the organization. 5. As an important part of the annual report on personal matters of leading cadres in party member, the profit and loss of private lending must be truthfully reported to the organization.
(2) severely punish civil servants for illegal private lending. Strictly control "punishment", and severely punish the following seven behaviors through admonishing conversation, informed criticism, disciplinary action, and investigation of criminal responsibility according to law: First, use the influence of authority and position to borrow money from management clients at free, low interest rate or high interest rate; The second is to use the influence of authority and status to obtain high returns or fixed returns in the form of investment or lending funds; Third, obtain bank loans by means of deception and fraud. , or lend money at high interest rate after financing through private lending; The fourth is to lend its own funds to others at high interest; The fifth is to provide guarantees for high-interest borrowers; Sixth, organize, participate in, cover up and condone illegal fund-raising and high-interest lending activities; Seventh, civil servants sign yin-yang contracts with borrowers, and withdraw principal and interest abnormally in the process of operating risks to avoid risks.
(3) Educate and guide public servants to conduct family financial management according to laws and regulations. Only when we know the laws and rules can we observe discipline. First of all, we should strengthen the study and education of civil servants' relevant laws, regulations, disciplines and policies. It is necessary to study and guide family financial management as an important part of cadre training. It not only encourages civil servants to conscientiously fulfill their family social responsibilities and conduct family financial management, but also requires civil servants to keep in mind their special status and always keep in mind the legal bottom line of family financial management according to law and compliance. The second is to clarify the subject of supervision. Establish institutions to manage public servants' participation in financial activities and conduct unified supervision over economic activities including private lending. Expand the scope of publicity, implement a family property declaration and publicity system for all public officials, and be open, sunny and transparent. Strengthen investigation and study to find effective ways to supervise the hidden economic behavior of public servants. Third, we should strengthen warning education. Focus on the typical case of party member cadres illegally participating in private lending to warn civil servants of legal risks, and the typical case of party member cadres inadvertently participating in private lending to warn civil servants of economic and family risks. Fourth, we should pay attention to the systematic education of civil servants' world outlook, outlook on life and values. Train cadres in party member to establish a correct and healthy outlook on life, wealth and happiness, firmly establish the ideological red line of obeying laws and regulations, distinguishing between public and private, and being honest and clean in family financial management, and always remember to protect and maintain the good social image of civil servants.
If in doubt, please consult the public education enterprises in China.