Research On The Issue Of Judicial Determination Of "Routine Lending"

With the development of China's economy and the upgrading of national consumption levels,the amount of capital flows has also increased.However,due to the strict system of formal credit rules,many small and micro enterprises or individuals lack the difficulty of financing,and private lending as a kind of Convenient financing has thus prospered.However,there are also many problems in private lending,such as the usury market.In addition,there is a cloak of private lending,which is a new way of encroaching on the property of others by inflating the amount of loans,manufacturing bank water,and false litigation.The criminal model,which is the “routing loan”,has emerged from a high incidence since its appearance,seriously disrupting social order,undermining judicial credibility and threatening people's property security.On October 25,2017,the Shanghai Higher People's Court,the Municipal Inspection Bureau,and the Municipal Public Security Bureau jointly issued the "Working Opinions on the Criminal Cases of Handling "Large Loans" in the City.This is the first criminal criminal regulation on "routing loans".The judicial documents broke the judicial gap of "routing loan" crimes;followed by Zhejiang,Chongqing,Anhui and other places also issued local guidance for the study of criminal cases of "routing loans".On April 9,2019,the "two high and two ministries" issued the "Opinions on Several Issues Concerning Handling Criminal Cases of "Routine Lending""(hereinafter referred to as "Opinions")and "Opinions on Handling Certain Issues in Criminal Cases of Evil Forces",The "Opinions on Handling Certain Issues Concerning the Disposal of Property in Criminal Cases of Black and Evil Forces" and "Opinions on Several Issues Concerning the Handling of Criminal Cases Concerning the Implementation of "Soft Violence"" have played an active role in unifying the judicial determination of "routing loan" crimes.Role,but in the trial of practical cases,there are still many problems to be solved and clear.Therefore,this article will combine the trial practice,from the perspective of empirical analysis,find out the problems in the identification of "routing loan" in practice,and propose specific solutions.Through the analysis of 128 criminal judgments nationwide,the author finds that although the “two highs and two departments” have relatively comprehensive regulations on the criminal regulation of “routing loans”,there are still many problems in the trial practice,such as the use of “soft violence”.In the "routing loan" of the debt,the use of telephone bombing,door-to-door insults and other means of claiming debts was identified as extortion,and the use of tracking,threats,etc.,to the victims more psychologically oppressed,was identified as fraud;in the victim several times In the case of borrowing from a “routing loan” company,the court's second or third loan to the victim was not identified as “frauded” by the victim,which violated the principle that the “Opinions” should be negatively evaluated on the whole “routinum loan”;In the case of the arbitrage of the arbitrage,the “knowing” element is neglected;the “routing loan” that claims the debt by false litigation is convicted and punished according to the crime of fraud,and the choice of the crime is inappropriate.Of course,the problem in the "routing loan" is not the case,but in this article,only the above four outstanding problems will be discussed in detail,paving the way for the later solutions.In view of the above problems,the author believes that the "soft violence" used in the "routing loan" should be divided into soft violence of violence and soft violence of coercive nature,which is more conducive to the accurate choice of the offender's crime;The number of people who borrowed from the “routing loan” company should be considered as being deceived.This is in line with the principle of the “Opinions” on the overall evaluation of “routing loans” and also the severe crackdown on the “routing loan” behavior;Although it is clear that the accomplices of "routing loans" should be based on "knowing knowledge",it is inclined to ignore the trial practice.It is recommended that the Supreme Law issue relevant guiding cases as soon as possible to standardize the trial practice;"Leggar scam" uses "lawsuit fraud" "The way to claim debts is not reasonable according to the crime of fraud.It is recommended to regulate the crime of false litigation in order to comply with the principle of criminal liability.Therefore,it can play a role in further standardizing trials,avoiding the phenomenon of different judgments and case judgments in the same case,and providing standardized guidance for judicial judges to more accurately refer to cases and combat “routing loans”.