Research On The Boundary Of Penalty Of Private Money Loans

Private money loans refers to the informal finance between natural persons,legal persons and unincorporated organizations,except for formal financial institutions and national governments.There is no explicit provision in the existing criminal law for private money loans.For this reason,there has not been a unified trial situation for private money loans in judicial practice(some as a crime,some as innocence,and even the judgements in criminal and civil are contradicted),the scholars also have different opinions.Therefore,the criminal law field is plagued by three problems: First,can private money loans constitute a crime? Second,if private money loans can constitute a crime,what kind of private money loans can constitute a crime? Third,how to distinguish the crime and non-crime of private money loans? This article strives to solve these three problems,especially the problem of criminal and civil demarcation of private money loans,which starts from two aspects of behavioral characteristics and logical methods.Except for the introduction,the main body of this article is divided into four chapters: The first chapter is the basic scope and legal basis of the punishment of private money loans.This chapter aims to prove the legitimacy and rationality of a specific range of private money loans into punishment.First of all,private money loans refers to the informal financial communication between natural persons,legal persons and unincorporated organizations,in addition to formal financial institutions and national governments.Considering the convenience of criminal and civil demarcation,private money loans can be divided into real-name private money loans and disguised private money loans according to different forms of borrowing;according to different purposes of borrowing,they can be divided into mutual aid private money loans,non-absorbed private money loans,and fraud There are three types of private money loans.Mutual assistance private money loans refer to borrowers borrowing from specific objects in order to meet the needs of civil life consumption or commercial production and operation in a short period of time;nonabsorbent private money loans refer to borrowers borrowing from unspecified objects for the needs of commercial production and operation;Fraudulent private money loans refer to borrowers borrowing from specific or unspecified objects in the name of private money loans for the purpose of illegal possession.Secondly,according to the current laws and regulations,mutual aid private money loans are not subject to criminal regulations,while non-abusing private money loans and fraudulent private money loans are the basic scope of penalties for private money loans.The penalties for non-absorbing private money loans are positioned as the crime of illegally absorbing public deposits.The penalties for civil fraud-type private money loanss of fraud-type private money loanss are located in the crime of fraud.Among them,the penalties for ordinary commercial fraud-type private money loans are located in the crime of contract fraud,and the penalties for special commercial(fund-raising)fraud-type private money loans are located in the crime of fund-raising fraud.Finally,the penalties for non-absorbed private money loans and fraudulent private money loans are both reasonable.Among them,the theory of limited autonomy of will,the theory of balance of interests,and the theory of financial management order protection are the rational basis for the criminalization of non-absorbed private money loanss,the theory of property rights protection is the common rationality basis for the criminalization of fraudulent private money loanss,and the protection of commercial credit and market order The theory is the peculiar rationality basis for the criminalization of commercial fraud-type private money loanss.The second chapter is to grasp the characteristics of criminal and civilian boundaries in the identification of non-absorbing private money loans crimes.This chapter aims to distinguish between non-absorbent private money loans and mutual aid private money loans.First,in practice,there is a problem that it is difficult to distinguish between non-absorbent private money loanss and mutual aid private money loanss from the number of direct borrowers and the amount of borrowings.However,since the two types of private money loans have different characteristics objectively,they can be distinguished from the different objective characteristics of the two types of private money loans.Mutual assistance private money loans have the characteristics of mutual assistance,non-publicity,specificity, and legitimacy;non-absorbent private money loans have the characteristics of illegality,openness,attractiveness,and sociality.Secondly,by comparing the characteristics of the two types of private money loans,it can be seen that the main points of the criminal and civil demarcation of non-absorbed private money loans are openness,sociality and illegality."Publicity" should be judged from the three aspects of propaganda object,propaganda content and propaganda method;"sociality" should be determined from the three aspects of whether the number of borrowers is large,whether the borrowers are not specific,and whether the scope of borrowing objects is expandable;"illegal" "It should be grasped from two aspects: whether the content of the borrowing behavior "violates the national financial management laws and regulations" and whether the form of the behavior "has not been approved by the relevant authorities in accordance with the law." Finally,two key issues of the criminal and civil distinctions of non-absorbed private money loans are demonstrated:(1)"violation of national financial management laws and regulations" refers to violations of legally effective provisions in content,including violations of departmental regulations or national financial management Implementation measures,detailed rules and other normative documents;(2)"Absorbing funds from relatives,friends,or internal personnel of the unit" only refers to the following two situations: First,only borrowing from relatives,friends,and internal personnel of the unit,and the funds are entirely from their own;2.Borrowing only from relatives,friends,and internal personnel of the unit.Although the funds come from others,the borrower does not know this or stops the borrowing and returns the borrowing in a timely manner.The third chapter is to grasp the characteristics of criminal and civilian boundaries in the identification of fraudulent private money loans crimes.This chapter aims to distinguish between fraudulent private money loans crimes and fraudulent private money loans disputes.First of all,fraudulent private money loans crimes and fraudulent private money loans disputes are objectively that the borrower borrows from him by fabricating facts or concealing the truth,and fails to repay the borrowed money on time.However,because the borrowers of the two types of private money loans have different subjective characteristics,the two types of private money loans can be distinguished from the different subjective purposes of the borrowers.The borrower of fraudulent private money loans is for the purpose of illegal possession of other people’s funds,and the borrower of fraudulent private money loans is for the purpose of defrauding other people’s funds temporarily.The main point of the two types of private money loans is whether the borrower is subjectively illegal.Purpose of possession.Second,clarify the criteria for determining the purpose of existing illegal possession.The standard for determining the purpose of illegal possession needs to be grasped from both content and method.In terms of content,the purpose of illegal possession is to "exclude the meaning" and "use the meaning";in terms of method,a comprehensive determination method of positive inference plus reverse inference should be adopted,if the conclusion of positive inference can be denied or the conclusion of positive inference may be questioned through reverse inference,Then it is proved that the conclusion of positive inference has not reached the level of eliminating reasonable suspicion,and the perpetrator cannot be determined to have the purpose of illegal possession.Finally,according to the clarified criteria for determining the purpose of illegal possession,civil fraud-type private money loans and commercial fraud-type private money loans are used.It focuses on that the reverse presumption of the purpose of illegal possession of civil fraud should be judged from common sense,common sense,and common sense within the cognitive ability of ordinary citizens,so as to eliminate the reasonable degree of civil suspicion;the reverse presumption of the purpose of illegal possession of commercial fraud should be determined from the merchant From a perspective,judged by commercial thinking,to the extent that reasonable doubts about commercial nature are eliminated.The fourth chapter is the logical grasp of the criminal and civil demarcation in the determination of the crime of private money loans.This chapter aims to construct a criminal-civil demarcation method for private money loans from the operational technology,and solve the problem of criminalcivilian contradiction in judicial practice.First of all,the analysis concludes that the private money loans behavior in judicial practice constitutes a crime in criminal,but the phenomenon of criminal and civil contradiction that the loan contract is legal and effective in civil is caused by the lack of logical and hierarchical demarcation methods.Secondly,based on the theory of illegal monism and punishable illegality,a "two-step process method" is constructed to divide the criminal and civilian boundaries of private money loans crimes,which is a progressive judgment from the illegality of the primary law to the illegality of the secondary law.Finally,the "two-step process method" is used to identify the two types of criminal borrowing crimes that can be criminalized,and to review the criminal and civil anti-current in judicial practice.The criminal and civil demarcation of non-sufficient private money loans crimes follows the progressive judgment from administrative illegality to criminal illegality;the civil and fraud-based criminal and civil demarcations of fraudulent private money loans crimes follow the progression from civil illegality to criminal illegality.Progressive judgment;general commercial fraud criminal and civil divisions follow the progressive judgment from commercial illegality to criminal illegality;special commercial(funding)fraud criminal civil divisions follow from commercial illegality,administrative illegality to criminal illegality Progressive judgment of sex.Administrative illegality or criminal illegality has the function of restricting the effectiveness of the civil loan contract,so as to prevent the conflict of criminal and civil.The possible innovations in this article are:1.For the first time,this article divides private money loans into mutual assistance private money loans,non-absorbing private money loans,and fraud private money loans for the first time.This is helpful to clarify theoretical confusion and narrow the scope of crime.2.For the first time,this article demonstrates the basic scope and theoretical basis of the punishment of private money loans from the perspective of what it is(legal system)and what it should be(the basis of legal theory).Guided by the overall thinking method,while adhering to normative analysis,the legal obstacles to the criminalization of private money loans are removed,and the theoretical obstacles to the criminalization of private money loans are eliminated.3.For the first time,from the perspective of different subjective and objective characteristics,it demonstrates the characteristics of the distinction between nonabsorbed private money loans and mutual aid private money loanss,fraudulent private money loanss and fraudulent private money loanss.It not only optimizes the existing theoretical research results,but also provides more concrete and feasible content support for the criminal and civil division of the two types of private money loans in judicial practice.4.For the first time,the "two-step process method" for the distinction between the criminal and the people of private money loans was constructed from the logical approach,which provides a concrete and feasible logical method for the current needs of the judicial field.This progressive demarcation method of illegality can effectively avoid the situation in which the borrowing act constitutes a crime in the criminal,but the loan contract is legal and effective in the civil,so as to maintain the unity of legal order.