| Since the first year of Internet Finance(2013),with the advantages of "low cost,high efficiency and super convenience",Internet finance has been written into the government work report for five consecutive years.All kinds of Internet Finance platforms(P2P online lending,crowdfunding,virtual currency,etc.)with high expectations of "financial innovation" have shown a blowout growth trend.However,innovation itself means risks.Internet finance not only has traditional financial risks,but also has the possibility of alienation of its unique new risks.Among them,Internet financial crime,as an extreme form of Internet financial risk,not only seriously threatens the national financial security,but also causes huge hidden dangers to the rights and interests of financial investors.As a matter of fact,there is nothing wrong with severely cracking down on Internet financial crimes under the banner of "financial innovation",but there is no doubt about the criminal governance of many legitimate Internet financial models in practice.Due to the particularity of Internet finance,it naturally conforms to the crime establishment standard under the traditional criminal law regulation mode.More and more Internet finance enterprises and platforms are facing the risk of incrimination and severe punishment.The generalized criminal legal risk has become the "sword of Damocles" hanging over the Internet financial enterprises and platforms.The criminal governance of Internet financial crimes contains the crisis of "excessive criminal law".Financial innovation should not be stifled blindly.The traditional criminal law regulation mode can not reserve more development space for Internet finance.The traditional criminal law regulation mode from strict guidance not only leads to the continuous expansion of Internet financial crime circle,but also causes the continuous increase of Internet financial crime penalty.The actual situation of Internet Financial crime criminal law regulation implies the state power The real danger of power expansion and civil rights reduction.This danger is not only not conducive to the function of criminal law to protect national financial security,but also not conducive to the value realization of criminal law to promote financial innovation.Therefore,under the background of "promoting the development of private economy" and "encouraging financial innovation",we should deeply review the limitations of the traditional criminal regulation mode of Internet financial crimes under strict guidance,so as to promote the transformation of the criminal regulation mode of Internet financial crimes.At the theoretical level,we should scientifically construct the theoretical system of criminal law regulation of Internet financial crimes,systematically optimize the theoretical connotation of criminal law regulation of Internet financial crimes,moderately amend the theoretical model of criminal law regulation of Internet financial crimes,steadily promote the development of criminal law regulation theory of Internet financial crimes,and provide clear theoretical guidance for the criminal law regulation of Internet financial crimes;at the practical level,it is effective To realize the legitimacy of criminal policy,the scientization of criminal legislation,the rationalization of criminal justice and the systematization of social governance of Internet financial crimes,moderately limit the scope and intensity of criminal law intervention in Internet financial crimes,prudently delimit the field of action of Internet financial criminal law,confirm the role orientation of Internet Financial criminal law,and rationally treat the function of Internet financial criminal law In order to realize the modernization of the criminal law governance ability and level of Internet financial crime,and provide criminal law guarantee for financial security and financial innovation.In addition to the introduction and conclusion,the full text is divided into five chapters with a total of 170000 words.The first chapter is the basic theory of the criminal law regulation of Internet financial crime.As a new financial format,Internet finance has the typical characteristics of financial function,decentralization,industrial integration and Inclusive Finance.In terms of mode,it can be divided into four types: payment platform,financing platform,financial management platform and service platform.In practice,the financing platform type is the most typical.Internet financial crime is the crime of Internet financial platform or internet financial enterprises as the main body of crime.In practice,it is mainly based on financing platform crime.Internet financial crime shows obvious characteristics of "non-contact" and "super personal".In terms of crime types,it can be divided into four types: P2 P network loan type,network crowdfunding type,virtual currency type and private fund type.As Internet financial crimes seriously threaten the national financial security and the legitimate rights and interests of financial investors,the criminal law should effectively regulate them.However,different from the traditional financial crime,considering the innovative nature of Internet finance,the criminal law should exercise restraint when regulating Internet financial crime to avoid the criminal law’s injury to Internet finance.Through the effective regulation of Internet financial crime by criminal law,the basic functions of balancing financial security and financial efficiency,reconciling financial order and financial freedom,deepening financial equity and financial innovation can be realized.The second chapter is the actual investigation of Internet financial crime and its regulation.In practice,Internet financial crimes show the realistic characteristics of explosive growth of crime situation,professional enhancement of criminal subject,increasing confusion of criminal means,upgrading of criminal consequence harmfulness,and advance of time point of crime accomplishment.Through the investigation of the pre regulation and criminal law regulation of Internet financial crime,it is found that the current regulation system of Internet financial crime has obvious characteristics of double-layer,complexity,lag,passivity,variability and regulation.On the characteristics of conviction,Internet financial crimes show the characteristics of extensive application of charges,mechanization of conviction process,bias of conviction object and variability of conviction elements.On the characteristics of sentencing,Internet financial crimes show the characteristics of centralization of sentencing results,simplicity of sentencing process and singleness of sentencing choice.The third chapter combs the problems of the criminal law regulation of Internet financial crimes.The empirical study finds that there are five core problems in the criminal law regulation of Internet financial crimes at this stage.First of all,the concept of criminal law regulation of Internet financial crime is unscientific,which is embodied in the concept of special reliance on punishment of criminal law,over emphasis on the concept of control of criminal law,and blindly advocating the concept of rashness of criminal law.Secondly,the object of the criminal law regulation of Internet financial crime is not clear,which is manifested in the confusion of financial crime and financial innovation behavior,financial crime and financial violation behavior,network financial crime and traditional financial crime,neutral help behavior and substantial accomplice behavior.Thirdly,the breadth of criminal regulation of Internet financial crimes is inappropriate,which is manifested in the following aspects: strict criminal policy leads to the deregulation of regulation boundary;broad order legal interest leads to the ambiguity of criminal regulation standard;abstract criminal norms lead to the uncertainty of criminal regulation limit;the deviation of criminal interpretation leads to the improper regulation boundary;the priority of criminal governance leads to the expansion of criminal regulation scope.Thirdly,the intensity of the criminal law regulation of Internet financial crimes is unreasonable.Through the analysis of the fixed-term imprisonment,fine and probation of Internet financial crimes,the results show that the penalty allocation and discretion of Internet financial crimes show an obvious tendency of strictness and imbalance.Finally,the effect of criminal law regulation of Internet financial crimes is not ideal,which is reflected in the poor general prevention function of negative penalty,limited general prevention function of positive penalty and doubt of special prevention function of penalty.The fourth chapter is the necessary turn of the criminal law regulation of Internet financial crimes.The criminal law regulation of Internet financial crime should be transformed from three aspects: idea remolding,position changing and value sticking.First of all,as far as the concept of criminal law regulation of Internet financial crimes is concerned,it should be remolded from punishment to prevention,from regulation to co governance,and from rashness to rationality.Secondly,from the standpoint of criminal law regulation of Internet financial crimes,we should realize the transformation from inclined protection to equal protection,from order maintenance to freedom protection,from omnipotence of criminal law to scientific positioning,from active expansion to reasonable restriction,and from heavy punishment tendency to mild punishment.In terms of the value of the criminal law regulation of Internet financial crimes,we should abide by the modesty of the criminal law,regain the independence of the criminal law,and implement the limitation of the criminal law,so as to reflect the value of the criminal law regulation of Internet financial crimes.The fifth chapter is the improvement of the criminal law regulation of Internet financial crime.Based on the criminal policy,the theory of legal interest,criminal legislation,criminal justice and configuration measures,this paper puts forward corresponding suggestions to improve the criminal regulation of Internet financial crime.First of all,correct and improve the criminal policy of Internet financial criminal law regulation.Specifically,it includes the scientific definition of the criminal policy of Internet financial crime,the lenient adjustment of the criminal policy of Internet financial crime,and the classification of the criminal policy of Internet financial crime.Secondly,revise and improve the theory of legal interest in the criminal law regulation of Internet finance,including the differentiation and innovation of legal interest positioning,the dual expansion of legal interest content,and the specific judgment of legal interest infringement.Thirdly,we should correct and improve the criminal legislation of Internet financial crimes,including the moderate stability of the accusation system,the rational reform of penalty allocation,the scientific improvement of the standard of incrimination,and the systematic supplement of the reasons for committing crimes.Thirdly,rectify and improve the criminal justice of Internet financial crimes,including the limitation of doctrine of incriminating interpretation,the activation of the function of criminal norms,the reasonable evaluation of penalty discretion,and the multiple use of sanctions.Finally,we should correct and improve the supporting measures of the criminal law regulation of Internet financial crimes,including the normal operation of regulatory technology,the standardized operation of industry self-discipline and the system construction of platform compliance.It is undeniable that the criminal law has played a positive role in the governance of Internet financial crimes.In recent years,under the influence of risk criminal law,the expansion of criminal law has never stopped.In a society full of risks,people’s uneasiness forces legislators to relieve people’s anxiety by adding new charges and increasing the amount of punishment.The criminal law amendment(11)is the best example of aggravating the penalty allocation of the crime of illegally absorbing public deposits and the crime of fund-raising fraud.However,the governance of Internet financial crimes is a systematic project,which can not be completed only by criminal law.For a long time,we have placed too much hope on the criminal law.We regard the criminal law as the "best means" to deal with social problems,rather than the "last resort".In fact,the criminal law should be positioned as the governance mode of "limited effect,moderate intervention and fair application".Blind mistrust and exaggeration of the role of the criminal law will cause a series of problems.The regulation of Internet financial crimes is a reality The current situation shows that the traditional criminal law regulation mode under strict guidance can not reserve more development space for Internet finance,but also lead to the disorder of the function of criminal law itself.In fact,criminal law tool thinking and criminal law omnipotent thinking have been rooted in the minds of legislators and judiciaries.The emergence of Internet financial crime governance may only be the tip of the iceberg.From this level,we may have a long way to go to change criminal law tool thinking and criminal law omnipotent thinking and promote the modernization of criminal law governance ability and governance system. |
PDF Full Text Request