Research On Judicial Application Of "Routine Loan" Crime

"Routine loan" is not a crime in the criminal law,but a general term for criminals’ illegal possession of the victim’s property in the name of private loan in recent years.In the current judicial practice,the trial of "routine loan" type criminal cases tends to replace the crime constitution with the concept of "routine loan",especially in the determination of the crime of fraud,extortion,illegal detention and provocation.Therefore,it is necessary to study the identification of charges involved in "routine loan" criminal cases.This paper is divided into four parts.The first part is the current situation and problems of the application of "routine loan" crime charges,using empirical research method to count the specific situation of 161 "routine loan" cases,and according to the different charges are classified.Through the analysis of the typical cases of the four charges,it is found that the current judicial organs ignore the constitution of the crime in the trial of "routine loan" type cases,which leads to the confusion of the determination of crime and non crime,this crime and that crime.At the same time,because there are many charges involved in the "routine loan" cases,there are also different standards in the determination of the number of crimes.The second part is to analyze the causes of confusion in the identification of "routine loan" crime.When judicial organs try cases,they usually judge whether it belongs to "routine loan" first.If they have compulsory debt demanding behavior at the same time,they judge whether it can be identified as the crime of extortion,the crime of illegal detention,the crime of provocation,and so on.If the means of debt demanding are relatively peaceful,they are mostly identified as the crime of fraud.That is to say,the judicial organ replaces the constitution of crime with "routine loan" when hearing relevant cases,which is essentially the violation of the principle of legality by criminal policy.The third part is to sort out and comment on the existing theoretical programs."Criminal law is the gap that criminal policy can’t be overstepped".The judicial organs should abide by the constitution of crime while cracking down on "routine loan".Therefore,the analysis of "routine loan" crime still needs to return to the constitution of crime.The third part around the "routine loan" related charges identified in the main elements,summarizes the current academic scholars point of view,judge whether constitute the corresponding crime.The fourth part and the fifth part are specific solutions.First of all,the fourth part points out that the trial of "routine loan" cases should be based on the constitution of crime and the principle of legality.Then,the fifth part,based on the previous text,analyzes in detail the "wrong understanding" in the crime of fraud,the relationship between the crime of extortion and "soft violence",the detention intensity in the crime of illegal detention and the "pocketing" of the crime of affray.In the identification of the main related charges of "routine loan",especially the constitutive elements of the above charges can not be ignored to avoid equating "routine loan" with crime.