Research On The Judicial Determination Of "Trap Loan"

As an emerging criminal model in recent years,"trap loan" is the product of the in-depth development of China’s market economy and the further increase of the demand for private financing.Its development trend has distinct regional characteristics.It first emerged in the southeast coastal provinces with relatively developed economy,then moved to the central and western regions of China,and finally evolved into a national crime.Accordingly,the relevant guidance was first issued by the high incidence of such cases,and then the two high joint departments also issued the relevant advice,providing a national guide for the handling of such cases.The gang of "trap loan" has a clear division of labor,close cooperation and strong professionalism,and even has legal professionals to provide services.The loan contract signed by both parties is even disguised as a legal civil dispute,which brings certain difficulties to relevant departments to crack down on such cases.Although relevant guidance has been issued at both the central and local levels,the content is relatively principle and the specificity is slightly insufficient.However,the procedures of such cases are numerous and the means and methods are easy to change,and many new methods are derived from the basic mode.Therefore,judicial determination in practice is still faced with certain difficulties.Based on this,this paper focuses on the deviation and difficulty in practice,and combines with the theory of criminal law to clarify the specific problem of identification,in order to help the accurate evaluation of the case.This paper starts with the development background and regulation process of"trap loan",analyzes and summarizes the basic characteristics of such cases on the basis of elaborating its basic connotation,and discusses the specific flow under the basic mode,and divides the flow according to the development stage,so as to further discuss the specific problems.In addition,it makes a comprehensive comparison with usury,which is the source of evolution and alienation,and makes a key analysis of the differences,which provides a method and path for the discrimination of "trap loan".Then,on the basis of consulting the guiding opinions and the analysis results of the scholars,this paper probes into the typical problems in judicial practice along the path of accusation,crime number and accomplice.First of all,in view of the differences and deviations in the determination of charges in judicial practice,the path for the determination of specific charges is determined,and the boundary of the application of related charges is drawn.This paper classifies "trap loan" as a crime of encroaching on wealth,evaluates it as a crime of fraud on the whole according to the behavior techniques of making up names and falsely increasing the amount of loan,and discusses the specific identification path.To obtain beforehand through litigation realistic behavior of inflated claims,initially when signing a loan contract with the borrower will lend gangs tool processing,delivery of the principal crime shall be confiscated,lending gangs don’t return the right of claim,the both sides of the creditor’s rights debt artificial zero,further fit the component elements of the crime of false action,should be made into sin.Secondly,on the basis of clarifying the path of specific accusation,the author explores the number of crimes.There is a big dispute in the determination of the number of crimes,which focuses on whether to follow the rule of implicated offense from one felony to be punished or to be punished with several crimes together,but there is no unified conclusion.This part points out that compliance with the rules of a felony is broken,there are some shortcomings,such as doubtful determination of the implicated relationship in the two-stage behavior of "trap loan",inconformity with the substantial connotation of the implicated offense,and judicial disunity.Combined punishment for several crimes has advantages such as the unification of law application,the implementation of criminal policy,the conformity with the trend of domestic and foreign criminal legislation,etc.It is proposed that the combined punishment for several crimes should be applied for the different crimes committed in the two stages of "trap loan".Furthermore,based on the clear division of labor within the gang of "trap loan",and the characteristics of multiple processes and strong stage,the discussion on the identification of accomplices is carried out.Along the path from the inside to the outside,the problem of accomplice within the gang is discussed first.According to their nature,ordinary groups and criminal groups are divided into two parts.The former starts with the specific process of different stages,while the latter elaborates on the punishment rules of criminal groups in China’s criminal law.Then,from objective lawlessness to subjective responsibility,this paper discusses the identification of accomplices among different groups associated with the reconciliation of accounts.Finally,based on the brief summary of the content of this paper,this paper makes clear the pending problems of the emerging crime of "trap loan",and looks forward to the future improvement of guidance and specific regulations with the accumulation of experience in dealing with such cases by judicial organs.