【线上云德】疫情期间律师说（二十五）|金融借款与民间借贷您该怎么选？

2020年春节期间新冠肺炎疫情的肆虐，受新冠肺炎疫情影响，众多中小企业都面临资金链紧张乃至断裂的困境，企业急需融资来减小资金链压力，以期转危为安。金融借款与民间借贷作为融资的重要手段，将在企业度过危机中扮演重要的角色。

During the Spring Festival in 2020, the novel coronavirus pneumonia epidemic was rampant. Affected by the novel coronavirus pneumonia epidemic, many small and medium-sized enterprises are facing the dilemma of tight or even broken capital chain. Enterprises urgently need financing to reduce the pressure on the capital chain in order to turn the crisis into peace. Financial loans and private loans, as important means of financing, will play an important role in the crisis of enterprises.

2020年2月26日上午十点，陕西云德律师事务所金融投资法律事务部首席律师宋路凯立足于企业现状，结合新近出台政策，首先，对两者的异同进行了分析。金融借款与民间借贷同样作为融资方式，两者无论从构成要件还是法律规范来看，都有着明显的区别。两者间的区别包括出借人主体的不同，合同类型与特征不同，金融借款要式有偿诺成合同，民间借贷非要式可无偿实践合同，借款资金来源不同，风险防范的方法和力度不同，合同文件格式和内容规范性不同。

At 10: 00 a.m. on February 26, 2020, Song Lukai, chief lawyer of the Financial Investment Legal Department of Shaanxi Yunde Law Firm, based on the current situation of the enterprise and in combination with the newly issued policies, first analyzed the similarities and differences between the two.Financial loans and private loans are also used as financing methods, which are obviously different from each other in terms of constitutive requirements and legal norms. The differences between the two include the different subjects of lenders, the different types and characteristics of contracts, the paid contract for financial loans, the non-governmental contract for free practice, the different sources of loan funds, the different methods and efforts of risk prevention, and the different formats and contents of contract documents.

其次，结合金融借款和民间借贷目前的发展现状、借款对象的选择、自身需求等情况，权衡利弊，深入分析了两种融资方式的优劣，以及如何选择才能更好助力企业度过危机。个人贷款无论是选择银行还是贷款公司借款，最好是根据自身条件和要求选择。金融借款合同中出借人需要对借款人进行一系列的调查了解，将借款人的借款用途进行归类，审查是否符合金融机构的借款业务范围。这里的借款用途是必备条款，其内部合规审查也对此严格掌握。提供的合同文本内容全面，基本涵盖了借款主体、种类、币种、用途、数额、利率、期限和还款方式等条款。这些内容都是经过专业法律人员研究指定的格式合同，该文本历经数十年的考验已经十分细致和完善，合同用语也十分精准。而民间借贷中通常不过于考虑借款目的和用途，通常只是借贷人的一个借款理由，出借人基于信任和其他关系自行考虑借款后果，并不深究其借款用途是否真实。民间借贷合同多数简单，通常就是借条、借据的形式，往往内容就是一张纸而已。金融借款对还款方式和期间规定比较严格，利率和利息的计算和支付方式也十分明确，而民间借贷合同通常比较随意。

Secondly, combined with the current development status of financial loans and private loans, the choice of borrowing objects, their own needs and other situations, weighing the pros and cons, in-depth analysis of the advantages and disadvantages of the two financing methods, and how to choose to better help enterprises through the crisis. Whether personal loans are to be borrowed by banks or loan companies, it is best to choose according to their own conditions and requirements. In the financial loan contract, the lender needs to conduct a series of investigations and understanding on the borrower, classify the borrower's loan purpose, and examine whether it conforms to the loan business scope of the financial institution. The purpose of borrowing here is a necessary clause, and its internal compliance review is also strictly controlled. The contract text provided is comprehensive in content and basically covers the terms of the borrower, type, currency, purpose, amount, interest rate, term and repayment method. These contents are all standard contracts designated by professional legal personnel. The text has been very detailed and perfect after decades of tests, and the contract terms are also very accurate. However, in private lending, the purpose and purpose of the loan are usually not considered too much. It is usually only a reason for the borrower to borrow. The lender considers the consequences of the loan on its own based on trust and other relationships, and does not delve into whether the purpose of the loan is true or not. Most of the private loan contracts are simple, usually in the form of IOUs and IOUs, and often the content is just a piece of paper. Financial loans have strict regulations on repayment methods and periods, and the calculation and payment methods of interest rates and interest are also very clear, while private loan contracts are usually more casual.

我国当前金融环境下，借款作为企业和个人有效的最直接融资手段，金融类的借款还是呈现主导地位。但是，随着经济发展的多元化和高速化，金融借款严格的审查条件，繁杂的手续不能完全满足于人们对资金的需求，大量中小企业取碍银行贷款的难度增加．资金供需矛盾愈加突出灵活多变的民间借贷方式也更为大家接受。对于追求低成本的借款人来说，可以选择银行贷款；对于急需用钱的人来说，可以选择贷款公司办理；对于追求安全指数的人来说，可以选择银行办理；对于信用不佳、收入不高的人来说，可以选择贷款公司贷款。所以选择哪种渠道办理，就要看借款人注重的是哪一方面。

Under the current financial environment in our country, borrowing is the most effective and direct financing method for enterprises and individuals, and financial borrowing still occupies a dominant position. However, with the diversification and high speed of economic development, the strict examination conditions and complicated procedures of financial loans cannot fully meet people's demand for funds, and it is more difficult for a large number of small and medium-sized enterprises to obstruct bank loans. The contradiction between supply and demand of funds has become more prominent. Flexible and changeable private lending methods are also more accepted by everyone. For borrowers who pursue low cost, they can choose bank loans. For those who are in urgent need of money, they can choose a loan company to handle it. For those who pursue safety index, they can choose banks to handle it. For people with poor credit and low income, they can choose loan companies to borrow money. Therefore, the choice of which channel to handle depends on which aspect the borrower pays attention to.

抗击疫情、人人有责，宋路凯律师以直播普法的方式为抗击疫情，助力企业尽快恢复生产贡献着自己的绵薄之力，其对企业面临的困境及对策深入浅出的分析，获得了观众的一致好评。

It is everyone's responsibility to fight against the epidemic. Lawyer Song Lukai has made his modest contribution to fight against the epidemic and help enterprises resume production as soon as possible by means of live broadcast of legal popularization. His in-depth and simple analysis of the difficulties and countermeasures faced by enterprises has won unanimous praise from the audience.