The Understanding And Application Of The Crime Of Illegal Business Loan

With the development of China’s market economy and the expansion of the scale of private financing,professional lending has increased.Professional lending behavior not only disturbs China’s financial order and market economic order,but also is accompanied by other crimes in practice,which seriously infringes citizens’ personal rights and property rights and affects the stability of social order.In October 2019,the Supreme People’s court,the Supreme People’s Procuratorate,the Ministry of public security and the Ministry of Justice jointly issued the opinions on Several Issues Concerning Handling Criminal Cases of illegal lending,which clearly convicted and punished professional lending as the crime of illegal business operation.The core content of the opinions lies in the establishment of the crime of illegal business operation of professional lending,which is conducive to maintaining the order of the national financial market,protecting the legitimate rights of citizens,punishing related crimes and maintaining social order.However,it can not be ignored that there are some problems in the judicial application of the crime of illegal business operation of professional lending.How to interpret these problems has aroused great controversy in the academic and practical circles.The disputes on the judicial application of the crime of illegal business operation of professional lending mainly focus on the constituent elements,regulatory boundaries,amount determination,relationship between the number of crimes,retroactivity and so on.The "opinions" has made it clear that the constitutive elements of the crime of illegal business operation of professional lending type are "violation","regularity","sociality","usury" and "seriousness".The main difference between the crime of illegal business operation of professional lending and private lending lies in "professionalism".Professional lenders take lending as their main business and earn high interest as their main purpose.Their lending objects are not specific,and their professional lending behaviors are repetitive and regular.The crime of illegal business operation of professional lending is closely related to "routine loan",which can easily lead to chaos of routine loan and endanger social stability.In the aspect of amount determination,substance is more important than form.According to the provisions of the opinion on the determination of principal amount in civil law,it is clear that the amount of professional loan should be determined according to the actual principal amount lent to the borrower,that is,according to the actual amount of loan that the borrower can completely control and use.On the identification and disposal of illegal income from the crime of illegal business operation of professional lending,the opinions include all the property actually collected by the professional lending actor,except the principal,into the illegal income.In addition,the "opinions" also stipulates that the amount of professional loans and illegal income corresponding to the unprocessed professional loans should also be accumulated.As for the determination of aggravating crime,the crime of illegal business operation of professional loan type should be severely punished.As for the determination of accomplice in the crime of illegal business operation of professional lending,the opinions does not give detailed provisions.We should adhere to the conviction principle of consistency between subjective and objective,take "knowing" as the premise of determination.In the determination of subjective intention,we need to combine the facts of the case and evidence.Judicial organs at all levels must make clear the main points of the case and carefully check the content of evidence.The crime of illegal business operation of professional lending often involves other related crimes in practice,and the difficulty in determining the nature is the "pain point" of judicial practice.The opinion stipulates the judgment principle of the crime of illegal business operation of professional lending involving other crimes,that is,the judgment principle of accompanying crimes and secondary crimes,and the judgment principle of accompanying crimes and secondary crimes,which provides reference for dealing with professional lending in practice The case provides sufficient legal basis.There is a lot of controversy about whether the time validity clause of the judicial interpretation of the crime of professional lending illegal business operation is retroactive.The "Opinions" should have retrospective effect.The judicial organs can apply the "Opinions" to the previous illegal business operations of professional lending,but they must be reported to the Supreme People’s Court for approval,and before reporting to the Supreme People’s Court,the local judicial organs should deal with them.The preliminary selection of cases is carried out,the focus of the crackdown is grasped,and the scope of reporting is limited to very serious professional lending cases that involve crimes,crimes,and "routine loans",and the "Opinions" are still not closed after the promulgation of the "Opinions."...