How Do I Become a Pawnbroker?

Pawns are also known as "pawn shops" or "deposit shops". It is an institution that used to collect goods as collateral and issue usury. There are many names of pawns in Chinese history, including "quality library", "solution library", "pawn shop", "longevity library" and so on. The earliest pawn industry in China appeared in the Northern and Southern Dynasties, and the earliest records of pawns can be found in "Hou Han Liu Liu Chuan": "Rewarded by Yu, Pawn Hu Yi." In the old days, Chinese pawns used to collect movables such as clothing as collateral, according to the borrower The value of the collateral provided is discounted, the cash is loaned, and the principal and interest are regularly recovered. Cannot be redeemed at the expiry date. The pledge is confiscated by the pawnshop, and some pawns can use real estate as pledge. ^[1]

[din dàng]

According to the regulations issued by the Ministry of Commerce and the Ministry of Public Security,

The basic process can be simply divided into three sections: delivery, receipt, and storage. The specific operating procedures are as follows:

1. Deliver the pawns with valid certificates.

2. Pawn shops accept pawns for identification.

3 The two parties agreed to evaluate the price, amount of cash and pawn period and confirm the statutory interest rate.

4 The two parties jointly counted the sealed pawns and kept them at the pawnshop.

5. The pawnshop issues a pawn ticket to the pawn to issue pawn money.

It should be noted that different pawn services require different documents and procedures:

1. Civil goods: I have the original ID card, it is best to have an invoice, and the price can be increased appropriately.

2. Real estate: householder's identity card, household register, house ownership certificate, land use certificate, etc., need to inspect the real estate on site.

3 Stock: My ID card, Shenzhen and Shanghai shareholder account card, generally need to sign a contract to monitor.

4 Vehicle: My ID card, car-related documents.

5. Materials: My ID card and relevant property certificate.

Note: Folk products include gold and silver jewelry, jewelry and diamonds, electronic products, clocks, cameras, etc.

What is the time limit for pawns?

According to the relevant regulations of the pawnshop management measures, the minimum time for pawns is 5 days, and the shortest time is calculated as 5 days, and the maximum period is 6 months.

Within 5 days after the pawn expires, the customer can choose to redeem it or choose to renew it according to his needs.

What is a perfect moment? What to do when the thing is absolutely dead?

After the expiration or renewal period of the pawn expires, the current account shall be redeemed or renewed within 5 days, and the non-redemption or renewal is expected to be an absolute pawn. After the extortion, if the value of the extortion is less than 30,000 yuan, the pawnshop may sell or discount it at its own expense. If the value of the extortion is more than 30,000 yuan, it may be dealt with in accordance with the relevant provisions of the Guarantee Law of the People's Republic of China. Alternatively, the two parties may agree in advance that the pawnshop will entrust the auction house to open the auction. After deducting auction fees and principal and interest from the auction income, the remainder of the auction income shall be returned to the principal, and the shortfall shall be recoursed to the principal.

Currently, the management of registered pawn shops is very strict. It needs to be examined and approved by the Ministry of Commerce of the People's Republic of China. After receiving the "Pawn Business Permit", the applicant shall apply to the local county-level people's government public security organ for the "special industry license" within 10 days. After the applicant has obtained the Special Industry License, he should arrive within 10 days.

The establishment of a pawnshop must meet certain conditions:

First, it is indeed a local economic development and social need, with a certain amount of business. The reason why the pawn business can recover after more than 30 years of disappearing is because it has adapted to the needs of the current economic development, can mobilize funds and facilitate the lives of the people. Therefore, before the establishment of a pawn shop, a sufficient feasibility study must be done in order to decide whether to establish a pawn shop, and when and where to establish it. Generally speaking, to set up a pawn shop, the choice of time and place is very important. Prosperous commercial areas and shopping malls are ideal places for pawn shops to set up. Because of the large amount of capital flows in these areas, the market naturally requires more funds, and relatively more people urgently need funds because of the inability to turn around the funds. Changsha Nanjiangkou pawnshop has a larger business volume than Changsha Boshan pawnshop, and its geographical location is a very important reason. Of course, choosing a good location is not easy, because one of these places is the high rent of the house, and the second is that it is difficult to find. Therefore, for the unit or individual who intends to open a pawnshop, it must be carefully considered and weighed. When to set up a pawn shop is also very particular about. If it is clear that a large increase in bank deposits and a sharp fall in interest rates, it is an unwise move to open a pawnshop; if the country s capital investment has increased significantly, there are quite a few projects launched or ready to be launched, and the bank is empty. There are definitely many people, bank loans are not possible, and pawn shops can solve the urgent needs of these people. Therefore, setting up a pawn bank at this time is undoubtedly a trick. But pawn shops can't take advantage of people's dangers and take advantage of exploitation. However, because China's current reform is in the exploratory period, some regulations are incomplete and inadequate, and policy changes are relatively large. Therefore, the time factor that is beneficial to the establishment of pawn shops is not constant, which requires flexibility and consideration. deal with.

Second, it has its own funds appropriate to its business. As a financial commercial institution, the amount of its own funds should be based on factors such as the scale of its operations and the volume of its business. It cannot be generalized. However, in terms of general scale, the pawnshop's own funds must not be less than 200,000.

Third, there is a sound organizational charter and business operation system.

Fourth, there are fixed business places and safe and reliable storage facilities for articles.

Fifth, there are qualified management personnel such as appraisal and storage of items. Regarding the provision of pawn appraisers with a certain business quality, as the pawnbrokers have just reopened, it is impossible to require pawn shops to be equipped with pawn appraisers with relatively high professional qualities. It is difficult for pawn shops to encounter antiques, calligraphy and painting When identifying an authentic product, it can be identified by a special expert or expert, or by the relevant department. But for general pawning, pawnshop managers should be able to evaluate and identify its value.

Sixth, pawnshops are economic entities that can independently operate, independently account, and bear their own profits and losses. As to whether a pawnshop has the status of a legal person, there is no hard and fast rule. Judging from the current situation of some pawn shops, they still do not have legal personality. As to how the ownership of pawn shops should be required, opinions are not uniform at present. With the further deepening of reform and opening up, the society's demand for funds is increasing, and the financing industry run by the state can no longer meet the growing needs. Therefore, the privately run pawnshops are established with the characteristics of flexibility, convenience, and fast turnover. It has the role that other forms of financing cannot replace. It is undoubtedly a powerful supplement to state-owned and collective pawnshops. In addition, due to the limitation of private funds and the state's strict regulations and management of pawnshops, private pawnshops can only play a supporting role in the country's financial loan system. Therefore, the state should not restrict the form of pawnshop ownership too much in legislation. As long as it meets social development and legal conditions, it should be allowed to start.

Seventh, the operation mode of pawn shops should be more flexible, and it should not be restricted to excessive death. As mentioned earlier, most of the current pawnshops also operate auction, consignment and other businesses. For example, the service methods of Changsha Pushan Pawnshops and Changsha Nanmenkou Pawnshops clearly stipulate that "commercial banks set up pawn and auction sales departments to develop pawn-based businesses, supplemented by auctions, and concurrently operate consignment services." In fact, pawnshops directly auction dead pawnshops can reduce the links, speed up the flow of logistics, and accelerate the turnover of funds, which is conducive to the development of pawnshops. Therefore, it is necessary for pawnshops to run auctions and consignments. Of course, for pawnshops that run auctions and consignments concurrently, the industry and commerce and tax authorities should exercise stricter management and supervision.

To apply for the establishment of a pawnshop, the following conditions must be met:
(1) There are articles of association in compliance with the laws and regulations;
(2) There is a registered capital that meets the required minimum limit (the minimum registered capital of a pawn bank is 3 million yuan; the minimum amount of registered capital is 5 million yuan if it is engaged in real estate mortgage pawn business; the registered capital is engaged in the pledge business of property rights pledge The minimum limit is 10 million yuan. The minimum registered capital of a pawnshop should be the monetary capital paid by shareholders, excluding capital invested in kind, industrial property rights, non-patent technology, and land use rights);
(3) Having a business place that meets the requirements and facilities necessary for conducting business;
(4) Having management personnel and appraisal personnel who are familiar with pawn business;
(5) There are two or more legal person shareholders, and the legal person shares are relatively controlled;
(6) Meet the public security management requirements stipulated in Articles 9 and 10 of the Pawn Management Measures;
(7) Meet the state's requirements for overall planning and reasonable layout of pawn shops.
Conditions for a pawn bank to establish a branch A pawn bank that has the following conditions may establish a branch:
(1) Having operated the pawn business for more than three years, with a registered capital of not less than RMB 15 million;
(2) Consecutive profits in the last two years;
(3) In the past two years, there is no record of illegal operations.
[Application Procedure]
1. Determine the total amount. The Ministry of Commerce determines the total amount of control and the reporting time of materials in accordance with the principle of planning as a whole and rational distribution and according to the corresponding economic indicators in various places.
Receiving materials. The applicant shall submit the application materials to the city (prefecture) -level commerce department in the district where the pawn shop is to be located in accordance with the requirements of the Pawn Management Measures. After receiving the application for setting up a pawn bank or a pawn bank to set up a branch, the city (prefecture) -level department in charge of commerce in the district reports to the provincial commerce department for preliminary review. The provincial commerce department submits the review opinions and application materials to the Ministry of Commerce .
3. Review by the Ministry of Commerce. The Ministry of Commerce organized the establishment of a joint examination and approval working group of pawn shops to review the reported materials.
4. Apply for approval. According to the minutes of the pawnshop joint review and approval working group meeting, the Ministry of Commerce issued approvals to the provincial competent commerce authorities for the establishment applications that met the requirements, and issued the "Pawn Business License." The applicant held the approval and the pawn business license to the relevant authorities. The department goes through the registration formalities. If it is not approved, notify the provincial competent commercial departments and explain the reasons.
5. The enterprise holds the approval document of the Ministry of Commerce and the "Pawn Operation Permit", and after the preliminary examination by the local public security organ of the county-level people's government, it applies for the "Special Industry Permit" from the municipal (prefectural) level public security organ, and holds the above approval and permit. Apply for a business license at the administrative department for industry and commerce.
[Application time limit] 45 working days for approval.
[Reporting Materials Catalogue]
Applicants for the establishment of a pawnshop shall submit the following materials to the city (prefecture) -level commerce department in the district where the pawnshop is to be located:
(1) Application for establishment (should specify the name, domicile, registered capital, shareholders and capital contribution, business scope, etc. of the pawn bank to be established) and a feasibility study report;
(2) Articles of association of the pawnshop, capital investment agreement and capital commitment letter;
(3) Business rules, internal management systems and security precautions of the pawnshop;
(4) a capital verification certificate issued by a legally qualified capital verification institution;
(5) Resume of individual shareholder, proposed legal representative and other senior management personnel issued by the personnel department of the unit where the file is located;
(6) A copy of the recent financial audit report of the legal person shareholder issued by a legally qualified accounting firm and a certificate of capital contribution capacity, a resolution of the board of directors (shareholders' meeting) of the legal person shareholder, and a copy of the business license;
(7) valid certification documents of the ownership or use right of the business place that meets the requirements;
(8) "Notice of Pre-approval of Enterprise Name" issued by the administrative authority for industry and commerce.
An applicant for a pawnshop to establish a branch should submit the following materials to the city (prefecture) -level commercial department in the district where the branch is to be established:
(1) Application report for setting up a branch (should specify the name, domicile, person-in-charge, working capital amount, etc. of the branch to be established), feasibility study report, and board of directors (shareholders' meeting) resolution;
(2) The financial and accounting report of the pawn bank in the last two years issued by a legally qualified accounting firm;
(3) Resume of the person in charge of the proposed branch issued by the personnel department where the file is located;
(4) valid certification documents of the ownership or use right of the business place that meets the requirements;
(5) The certificate issued by the provincial competent commercial department and the local county-level people's government public security organ for the past two years without any illegal or illegal business records.

The need for pawn legislation

(1) Controversy over the management of pawn legislation The Chinese pawn industry is said to have originated in the Southern Dynasty, and has re-developed after more than 1,600 years of ups and downs, but it started from the Huamao pawn in Chengdu, Sichuan, which marked the return of the pawn industry in New China. From the day of establishment, whether the pawnbrokers should unify legislation has been accompanied by controversy. After the founding of the People's Republic of China, the pawn industry was once banned. It was no longer necessary to adopt special legislation to regulate the pawn industry. For some pawn behaviors that still exist in the people, the policy and judicial interpretation were adjusted. For example, Article 58 of the Opinions of the Supreme People's Court on the Implementation of Civil Policies and Laws of 1987 and 1988 Opinions on the Implementation of the General Principles of the Civil Law of the People's Republic of China (Trial) Article 120 both affirmed the system of pawn power. . After the rise of the pawn industry, there have been different opinions in the government management and legal circles on how to regulate the pawn industry through legislation.

On the government side, pawn shops were initially implemented as a financial institution by the People's Bank of China with a strict management policy. In June 2000, the supervision of the pawn industry was taken over by the State Economic and Trade Commission and announced that the qualification of financial institutions for pawn shops was cancelled. As a special industrial and commercial enterprise, the market access conditions for pawn shops were relaxed, allowing pawn shops to engage in movable property and property rights businesses. In July 2003, the State Economic and Trade Commission was cancelled. After the establishment of the Ministry of Commerce, it was responsible for the supervision of the pawn industry. The frequent changes of industry authorities, and the change in the role of pawn companies from "financial institutions" to "special industrial and commercial enterprises" to "more special industrial and commercial enterprises" are not only the need for institutional reforms, but actually reflect the government management There is no stable consensus on the nature of pawn business.

In the legal field, there have always been two propositions regarding the legislative form of pawnbrokers. The first is the addition of a section entitled "Business Pledge" in the "Pledge Right" section of the Property Law. The second is to formulate a pawn business law. The Civil Code of the People's Republic of China (Draft), drafted by the Office of the Legal Work Committee of the Standing Committee of the National People's Congress on December 17, 2002, has no provision for pledge of business rights, and was jointly issued by the Ministry of Commerce and the Ministry of Public Security in February 2005. "Pawn Management Measures" (hereinafter referred to as the "Measures"). In order to overcome the shortcomings in the effectiveness of the pawn management norms, a pledge of business rights was specifically set up in the "Real Right Law" (draft) drafted by Professor Liang Huixing and Professor Wang Liming. If this provision is adopted, special legislation for the pawn industry will be short-term. No introduction is possible. There are also different views in the legal field on whether the relevant provisions of the "pledge of business" can cover the practice of "pawning" in practice. During the four reviews of the Property Law (Draft), the provisions on "pawning rights" were written twice. It has been taken away twice, which shows that the legislative disputes between the legislature and the legal circles about pawning are indeed very large.

It is the uncertainty of the government and legal circles' understanding of the pawn industry that has led to the adjustment of the pawn industry that has not been incorporated into the law. When the pawn business is in dispute with the upstream bank guarantee business and the downstream consignment business due to confusion, the existing The "Measures" are not effective enough, and many normal pawn behaviors have also fallen into the enclave of legal jurisdiction, and some new businesses, such as the disposal of stock pledges, cannot be relied upon.

(2) Low level and effectiveness of the Measures

Although China's pawn industry is recovering and developing rapidly, it cannot meet the practical needs due to the low level of management standards and its low effectiveness. In terms of its legal rank and effectiveness, the Measures are administrative rules and regulations, which are lower in level and effectiveness than laws and regulations. This has produced at least two consequences that are not conducive to the development of pawnbrokers. First, it cannot prevent other departments of the State Council and local legislatures from formulating relevant regulations, causing confusion in the management of multiple departments. Second, when the relevant regulations formulated by other departments of the State Council and local legislatures are inconsistent with the Measures, whether to determine their effectiveness is based on the level of the regulatory agency or the time when the regulations were promulgated. There is no clear stipulation in Chinese law, which has caused enterprises to comply with the law. Lost in business. This is the reality. As there is no unified national authoritative legislation, although the Measures fully stipulate the nature of pawn shops, competent authorities, procedures for establishment and change and termination, business scope, business methods and penalties, etc. At times, especially when entering the court proceedings, the basis for each is required. Because the industry regulations of various relevant administrative departments and the principles of provincial and municipal regulations are different, which leads to an increase in disputes in the operation and development of the pawn industry, the effectiveness of some pawn behaviors can only be obtained through "replies" from the Supreme People's Court or the competent authority. Affirmative, such as the reply of the "People's Court of the Supreme People's Court on Dai Wenlin and Dai Wenzhi v. Gao Xuekong on how to handle the pawn dispute in housing" in 1993 and the "People's Bank of China's Pawnbrokers' Loan Repayment in 1996" The reply on business-related issues "regarding the" No prohibition on home loan loan business "and so on. This management mode of headache and foot pain reduces the management efficiency of the enterprise and seriously affects the sustainable operation of the enterprise.

(3) Some important norms of the Measures are too abstract or lack operability

Some important norms of the Measures are too abstract and lack operability. For example, although the "Measures" allows pawn enterprises to establish branches, the legal status of the branches is not clearly stipulated in the "Measures." Article 53 of the Measures generally stipulates that public security organs should detain stolen goods or suspected stolen goods in accordance with the law and deal with them in accordance with relevant state regulations at this time, but what is meant by "relevant state regulations" is not clear. Practice Cannot operate during. Regarding the damage of pawns, there is no detailed stipulation on the pawnshop for compensation. In practice, it can only be handled according to the relevant provisions of the General Principles of the Civil Law, which greatly reduces the role of the Measures as special law. According to the "Measures", after the real estate, automobile, etc. must be completed, the current accountant should now go through the registration and transfer formalities, but in the pawn practice, the often refused to perform their obligations, because the "Measures" and the public security department's vehicle registration management regulations lack a high-level In legal connection, if the pawn company handles the transfer procedure unilaterally at this time, it is usually refused by the relevant department according to law and so on. There are many such norms in the Measures that are too abstract to be easy to operate. Rather than formulating a high-efficiency implementation rule through a department with limited power, it is better to formulate an authoritative commercial code to solve these problems. In addition, through the establishment of the pawn law, it can also provide a more secure channel for the pawnbrokers to remedy. For example, when normal pawn activities encounter relevant departments' legal rejection, obstruction and negative inaction, the pawn enterprise can protect them through judicial channels. Self-interest.

(IV) Conflicts between the main legal norms related to the pawn industry

The legal norms for adjusting the pawn industry in China mainly include relevant qualitative provisions in the Guarantee Law of the People s Republic of China (hereinafter referred to as Guarantee Law), the Measures jointly issued by the Ministry of Commerce and the Ministry of Public Security, and the Company Law of the People s Republic of China ( (Hereinafter referred to as the "Company Law") regarding the establishment and operation of companies, regulations related to pawn business promulgated by other departments of the State Council, regulations on pawn business by local authorities, and so on. Due to "many policies", these norms or connections are not good or conflict with each other, affecting the healthy operation of pawnbrokers. The most troubled by the theoretical and practical circles is the conflict between the "Measures" and the "Guarantee Law". According to China's "Guarantee Law", the pledge is a kind of business pledge, the liquidity agreement is invalid, and according to the "Measures" , Pawn is not only a kind of business pledge, the pledger can also obtain real estate and obtain financing, so the pledgee obtains the right of redemption. This shows that the rights obtained by the pawn enterprise due to the pawn behavior are different from the business pledge, so The "Measures" recognize the validity of the liquidity agreement. In this case, should the pawn company apply the "Guarantee Law" or "Measures"? From the perspective of legal effectiveness, the former is undoubtedly more effective than the latter, but from the relationship between general law and special law, the latter should take precedence over the former, and pawnbrokers are thus at a loss.

The urgency of pawn legislation

Judging from the business innovation of the pawn industry, part of the business is already outside the regulation scope of the Measures and other legal norms. Therefore, it is urgent to formulate a pawn law and improve the legislative level of pawn management.

(I) There is no clear legal basis for pawnbrokers to develop chain operations

In 2007, Shanghai Bailian Group established China's first modern pawn chain company, Hualian Pawn Chain Company, which marked that the pawn industry, China's oldest industry, has entered a new period of development. Attempts by Chinese pawnbrokers to operate chain operations are affected by at least the following two factors. First, the chain operation of commercial enterprises has swept the world because of its obvious role in reducing costs, resisting risks, and increasing competitiveness. Second, the United States, as the birthplace of chain operations, has set an example. For example, the United States International Pawn Co., Ltd., established in 1987, became a listed company on the New York Stock Exchange in 1990. The company has a total of 765 chain pawn shops across the country, and also has branches in the UK and Sweden. Through chain operation and management, the overall strength of the company has been rapidly improved. Although China's pawn industry has a long history, how to legally regulate the chain operation of pawn enterprises under market economy conditions is almost blank.

According to the provisions of Articles 3 and 12 of the Measures, pawn shops are legally established corporate legal persons specializing in pawn activities, and their organizational forms and organizations are subject to the Company Law of the People's Republic of China (hereinafter referred to as the "Company Law"). Pawn shops can set up branches across provinces (autonomous regions and municipalities). These two are usually understood as the pass for the legal pawnbrokers to carry out chain operations. In fact, this is a misunderstanding of the above terms. First of all, according to the "Company Law", branches do not have legal personality, and their actions are subject to many restrictions imposed by the legal person. Therefore, they cannot independently bear civil liability in the market. Secondly, according to the different legal status of chain organizations, there are generally three types of chain enterprises. First, chain organizations do not have legal personality, similar to branches. The business activities of such chain enterprises are subject to many restrictions such as their legal status and operating capabilities. There are no obvious advantages in terms of scale, speed, and cost reduction. Secondly, chain institutions have the qualifications of a legal person, but they are fully invested or controlled by one party. Their behavior is still restricted by the legal person. They often make chain companies slow to respond to market changes and reduce the effectiveness of chain enterprises. Third, chain institutions not only Have completely independent legal person qualifications, and share resources with each other in terms of brand, business, management and talent. The first one is a lower-level chain operation due to its small scale and strength and high operating costs. The third type is a higher-level chain operation because it can quickly increase market share, with low cost and low risk. Thirdly, obviously, according to the Measures, China's pawn industry can only carry out low-level chain operations. However, in the practice of pawn practice, the third chain operation is basically adopted by the industry. Shareholders mostly use anonymous agents to register and operate. In addition, by examining the existing laws and regulations, even if the establishment of branches is allowed, it does not mean that chain operations can be carried out. Neither the Measures nor other laws and regulations have made the subject qualifications, business methods and responsibilities of pawn chain operations. Any clear stipulation that, in practice, an investor who applies for the establishment of two or more pawn shops at the same time will not be supported by the relevant competent authority. In the pawn chain operation, such a disconnection between practice and management norms is common in the entire pawn industry, that is, either it cannot be relied on or there is no law.

(2) The pawn company has huge legal risks in carrying out stock pawn business

Stock pawn business is a business that mainly provides financing services for individual investors in the securities market. Specifically, the pawn company first discusses cooperation matters with the brokerage firm and supervises the customer through the brokerage firm. After the client signs the contract with the pawnshop, the customer transfers the stock to the account of the business department of the securities company that cooperates with the pawnshop, and at the same time the pawnshop Funds are also injected into this account. Before the contract expires, customers can freely operate stock transactions, but they cannot withdraw any money. After the client expires, the account is unfrozen. Although the "Measures" stipulate that pawn shops can operate pledge business of stocks as property rights, as a departmental regulation, it also cannot provide for matters involving the jurisdiction of other departments. Moreover, neither the "Company Law", the "Securities Law" or the "Measures" itself makes no provisions on how to operate after the stock pawn and how to protect the rights and obligations of both parties. Therefore, when the pledger fails to ransom on time, the behavior of pawnbrokers and securities companies forcibly liquidating positions not only conflicts with the laws of the Security Law on handling pledges, but also violates the principle of freedom of trading in the Securities Law. Once this kind of serious illegal behavior causes judicial proceedings, not only the rights and interests of the parties are not protected by the law, but also the possibility of being punished by the law for violation of the law. Obviously, relying on the "Measures" cannot protect the rights and interests of stock pawn parties. To avoid this risk, it is necessary to formulate a pawn law and jointly regulate the stock pawn behavior with the relevant provisions of the Company Law and the Securities Law.

(3) Pawning of land use rights is not appropriate

According to Article 25 of the "Measures", upon approval, pawn shops can operate pledge business of property rights and real estate (except for real estate in other provinces, autonomous regions, and municipalities or construction projects that have not obtained a pre-sale license for commercial housing) to pawn business. Land use rights belong to property rights and are certainly within the scope of the pawn business. However, no matter from the nature of the pawn business or the legislative purpose of relevant laws, pawns should not operate land use rights, or at least operate land use. Rights are subject to some strict restrictions. First of all, pawn business exists to meet the short-term financing needs of enterprises and individuals. It plays a function that financial institutions do not have or are incomplete, and land use rights, as property rights attached to large amounts of real estate, have long been used as corporate and personal assets. The main guarantee method for bank financing has formed a set of complete and mature operating rules, maintaining the balance of interests between the parties. The pawn industry operating land use rights will be confused with the banking industry in business. If disputes arise due to competition, the parties will fall into an unreliable situation because there is no pawn law, which will undoubtedly damage the interests of the parties. Secondly, when pawn companies actually operate the land use right business, there are also extremely irregular behaviors. For example, some pawn companies use some collective units in urban suburbs or urban villages to urgently need funds to induce parties to pawn with collective land use rights. When it is not possible to repay on time, it is possible to directly obtain the collective use right through pawns at an extremely cheap price, which violates both the Land Law, the Auction Law, and the principle of fair trade. Therefore, without strict restrictions, it is not appropriate to use land use rights as the scope of pawn management.

Three Principles of Pawn Legislation

Pawn legislation should adhere to three balanced principles

Faced with the above-mentioned shortcomings, it should be said that it is necessary to promote a pawn law formulated and promulgated by the highest legislature. Because the business scope of the pawn industry continues to expand, from movable property to property rights and real estate, and the pawn method has expanded from qualitative to arbitrarily, the quality of business in traditional jurisprudence can no longer summarize the true meaning of pawns. In fact, foreign pawn industry is adjusted by special pawn regulations, such as the British Pawn Business Act 1960, the Singapore Pawn Business Act, and the Hong Kong Pawn Business Ordinance. Therefore, the formulation of a special pawn law not only conforms to the current legislative trend, that is, the transition of legislation from comprehensive to specialized, but also promotes the normative development of the pawn industry. The legalization of the pawn industry will surely develop faster. In view of the fact that the pawn practice and the pawn management norm are disconnected, it is suggested that three balanced principles should be grasped when formulating a unified pawn law:

Pawn Theory and Practice

Definition and Legislative Choice of Pawns. According to customary law, "code" and "dang" have clearly different meanings in the folk. "Code" refers to real estate mortgage, and "dang" refers to movable property pledge. According to Article 3 of the Measures, pawn refers to "the pawner uses his movable property or property rights as pawn or returns his real estate to the pawn bank, pays a certain percentage of the cost, obtains the pawn, and pays it within the agreed period. Pawn interest, repayment of pawn, redemption of pawns. " According to this provision, the pawnshop actually has an inaccurate name. On the one hand, the pawnshop actually does not engage in the business of "pawning", that is, it does not pay the pawner to the pawnee and occupies its real estate as a profit. On the other hand, the pawn business has exceeded the dang in the original sense, that is, it not only owns the movable property or the certificate of rights of the pawn person to guarantee the realization of the creditor's rights, but also engages in the loan of real property. Pawns, pawns, movables, and real estates apply different rules of possession and disposal in the property law. Obviously, the drafters of the Measures chose to abandon history and define pawns according to their own understanding, but the practice still follows their own path. For example, when pawnshops engage in immovable mortgages, they clearly violate the provisions of the Guarantee Law on offsetting the need to transfer possession, but from the reality, the relevant departments have not banned this in their supervision. Therefore, from a practical perspective, instead of letting the parties violate the law, it is better to respect history and habits when choosing legislation, as long as such history and habits do not violate social welfare and good customs.

Traditional Habits and Management

Compared with the old pawn management norms, the new "Measures" has indeed made a lot of progress in terms of time and comprehensiveness, but it still does not seem to be enough in respect of pawn practice and respect for pawn habits. The most typical is how to deal with the peculiar thing. The so-called "perfect pawn" refers to the pawn that is neither redeemed nor renewed by the pawnee for a period of time from the expiration of the pawn period. The key to how to deal with the pawn is to determine the nature of the pawn contract. Article 3 of the Measures identifies the nature of the pawn contract as a pledge contract, and Article 66 of the Guarantee Law prohibits the establishment of a liquidity contract in the pledge contract. In order to align with the provisions of the Guarantee Law, the Measures provide for dead goods, 3 An auction house of more than 10,000 yuan may be entrusted to the public auction. After deducting the principal and interest of the pledged loan and the cost of the pawn and auction, the remaining portion of the auction income shall be returned to the pawnee. But from the actual situation, the pawnshop did not abide by this regulation when operating the pawn business. They usually stipulate that the pawn owner will transfer the ownership of the pawn directly to the pawnshop when the pawner is overdue. Although such contracts should of course be invalid according to the "Guarantee Law", there are a large number of such clauses in reality, there is insufficient evidence to show that liquidity contracts have led to an increase in pawnbroker disputes, and the regulatory authorities have not adopted stricter supervision for this. Measures.

The reason why pawn companies dare to follow the habit and violate the Measures in practice is perhaps the most sufficient reason is that enterprises and individuals have not suffered serious losses as a result, even if the losses are within acceptable limits, and even increase revenue, supervision The reason why the department has not adopted stricter supervision measures for this is at least that the behavior of the pawn enterprise has not seriously disrupted the social and economic order and management order. In fact, the customary practice of pawn companies allowing liquidity contracts is in line with the new development trend of the "Guarantee Law", which provides a reference for pawn legislation. When legislative management of business with historical tradition, if the industry's custom Law conforms to the general principle of fairness, does not harm the public interest, and is widely accepted by people in the industry. It should respect history, attach importance to practice, and not blindly innovate.

Freedom of management and trading

In view of the peculiarity of pawn business, strict management is needed, but from the perspective of commercial convenience, it is necessary to ensure the freedom of transaction. It is indeed difficult to grasp the balance between the two. In general, the "Measures" have too much strict management and too little freedom of transaction. For example, Article 26 places too many restrictions on the business scope of pawn shops. Pawn shops are not allowed to carry out the following businesses, sales of non-pecuniary items and the acquisition, consignment of used objects, movable property mortgage business, fund raising, deposit absorption or disguised deposit absorption, issuing credit loans, and other businesses without the approval of the Ministry of Commerce. These regulations are not conducive to the further development of the pawn industry. In some countries where the pawn industry is operating well, the business scope of pawn shops is very wide and comprehensive. "Pawn shops not only operate pawn businesses, but also do some retail sales of goods, including the sale of used goods and the sale of new products. A pawn shop can Having multiple licenses, because multiple operations can reduce operating risks and increase their profit points, it is conducive to the stable operation of the pawn shop and is more convenient for the people. " The same is true of the regulations on the disposal of pawns in the Measures, which are different from traditional pawns and are inconsistent with practices in practice. As a result, the pawn industry has lost its quality of business and is similar to ordinary pledged loans. Reduced motivation due to smaller profit opportunities.

In view of the above reasons, it is recommended that in addition to strict control of factors that may affect social stability, legislation should respect the parties' independent choices such as whether to establish branches and business scope, and to maintain freedom of transaction.

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