正 策 动 态

根据现行规定，本案中，G公司存在如下违规行为：

收取砍头息

夏某收到借款当日即向中介F公司员工鲍某转账72933.36元，其中包括第一期还款本息23333.36元，若该转账行为为G公司所要求，则G公司违反《银行保险机构消费者权益保护管理办法》等规定，侵害消费者公平交易权，需承担相应行政责任；并且根据《中华人民共和国民法典》《最高人民法院关于审理民间借贷案件适用法律若干问题的规定》等规定，借款当日即要求归还第一期本息有悖实质公平，此举加重了借款人的债务负担，应以实际出借的金额为本金，法院最终认定该23333.36元应当作为砍头息予以扣除。

对合作助贷机构欠缺监督与管理

本案中，G公司未能充分监督管理合作助贷机构F公司的行为，虽其与F公司签订的《合作协议》中已明确约定F公司无权向借款人收取任何名义的费用，但在实践中，G公司委托F公司联系借款人、签订合同，在整个借款过程中，均由F公司沟通、交涉，第一期本息亦由F公司代收，最终导致法院认为，夏某、刘某有理由相信F公司代表G公司收取的49600元应被视为砍头息，应予以扣除。

According to prevailing regulations, company G committed the following violations in the case.

“Cut interest” collection. On the day Xia received the loan, he transferred RMB72,933 to Bao, an employee of company F, including the first instalment of the principal and interest of RMB23,333. Company G would have violated the Measures for the Administration of Consumer Rights Protection of Banking and Insurance Institutions and infringed on consumers’ rights to fair trading if the transfer was required by company G, who would bear corresponding administrative liabilities.

Furthermore, in accordance with the Civil Code and the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases and other provisions, it would have been contrary to substantive fairness and increased the borrower’s debt burden if the repayment of the first instalment of principal and interest was required just on the day of borrowing. Hence, the actual loan amount should be regarded as the principal, and the court finally determined that the RMB23,333 should be deducted as the “cut interest”.

Inadequate supervision and administration on loan facilitators. In this case, company G failed to fully supervise and administer the behaviour of company F, its loan-facilitating institution. The co-operation agreement signed between company G and company F clearly stipulated that company F was not entitled to charge any fees to the borrower in any name. In practice, company G entrusted company F to contact borrowers and sign the contract.

During the entire loan process, company F was responsible for communication and negotiation with borrowers, with the first instalment of principal and interest collected by company F as well, which ultimately led the court to determine that Xia and Liu had reasons to believe that the RMB49,600 collected by company F should be considered as “cut interest” and should be deducted accordingly.

不良影响分析

Insight into negative impacts

助贷机构直接向借款人收取费用，对金融机构可能产生如下不良影响：

1、引发消费者投诉

在助贷机构直接向借款人收费的模式下，易引发助贷机构与借款人间的争议。实践中，借款人往往欠缺金融知识，不知晓助贷机构及金融机构的区别，进而产生错误认识，直接向监管部门投诉涉及的金融机构，使得金融机构面临消保压力。

2、受行政处罚

根据《关于规范整顿“现金贷”业务的通知》（下称《通知》）之规定，银行业金融机构与第三方机构合作开展贷款业务的，应要求并保证第三方合作机构不得向借款人收取息费。实践中，部分助贷机构存在以息费之外的名义向消费者收取费用的情况，对于助贷机构的该等行为，目前并无直接规定以确定其效力，也无直接规范对金融机构提出更具体的要求，但不可否认的是，助贷机构的该等行为给金融机构埋下不合规的种子，监管当局有随时对之予以处罚的可能。

基于本文提及的案例，法院认为，在金融机构与助贷机构有约定禁止助贷机构向借款人收取费用的情况下，助贷机构向借款人以中介费、服务费等名义收取费用，增加了借款人的资金成本，应当进行否定评价，对于助贷机构在无法律规定或者合同依据的情况下收取的费用，应当作为借款人的还款扣除相应的本息，以此规范助贷机构的助贷行为，降低用款人资金成本。助贷机构收取的费用被扣除相应的本息将给金融机构带来资金损失。

在助贷模式下，金融机构应根据《通知》等监管规定，在双方签订的合作协议中明确应由金融机构直接向借款人收取一切费用，在合作过程中亦应加强对助贷机构的监督管理，规避其私自向借款人收取费用。

There may be the following negative impacts on financial institutions if loan-facilitating institutions charge fees directly to borrowers.

Consumer complaints. Based on the model in which loan facilitators charge borrowers directly, disputes may arise between these facilitators and borrowers. In a lending model with loan facilitators levying charges directly on borrowers, conflicts can emerge between these facilitators and borrowers.

In reality, borrowers often struggle to distinguish between loan facilitators and traditional financial institutions due to limited financial knowledge. This confusion leads to misunderstandings and direct grievances filed by borrowers against the financial institutions involved. Consequently, financial institutions face mounting pressure to safeguard consumer interests.

Administrative penalties. According to the Notice on Regulating and Rectifying the “Cash Loan” Business, when banking and financial institutions collaborate with third-party entities to conduct loan activities, they must demand and ensure that these third-party entities refrain from charging borrowers any interest or fees.

In practice, some loan-facilitating institutions still impose charges on consumers under different pretexts beyond interest and fees. Currently, there are no explicit provisions to address and validate the effectiveness of such actions by these loan-facilitating institutions, and no direct regulations are imposing more specific requirements on financial institutions regarding this matter. Such actions of loan-facilitating institutions undeniably pose a risk of non-compliance for financial institutions, leaving them susceptible to potential penalties from regulatory authorities at any time.

With regard to the case in this article, the court holds that a negative evaluation should be made since a financial institution and a loan-facilitating institution have agreed that the loan facilitator is prohibited from charging fees to borrowers, yet the loan-facilitating institution still charges fees in the name of broker fees, service fees and more, which increases the funding costs of borrowers.

For fees charged by loan facilitators without applicable legal provisions or contractual basis, the relevant principal and interest should be deducted from the borrower’s repayment to regulate the loan facilitation and reduce the funding costs of borrowers. Financial institutions may suffer financial losses when the principal and interest are deducted from the fees charged by loan facilitators.

When adopting the loan facilitation model, financial institutions should, in accordance with the notice and other regulatory regulations, specify in the co-operation agreement signed by both parties that the financial institution should directly collect all fees from the borrower. Additionally, financial institutions should tighten their supervision over loan facilitators to prevent them from charging fees to borrowers privately.