Determination Of The Crime Of Illegal Business Operation In The Professional Loan

The Lending behavior is an important part of national finance,which is related to the national economy and people’s livelihood,and its social status plays an important role.In different periods,due to political,economic,legal,religious and other factors,a variety of academic views have emerged.In recent years,the theoretical controversy of lending behavior in criminal law has mainly focused on whether and what kind of crime we should be guilty of,and has not been a unified conclusion.The reasons relate to the basic spirit of criminal law,the objective logic of the generation of lending behavior,the conflict of value orientation such as freedom of contract and supervision,and the satisfaction of capital demand by lending behavior.In 2019,the Supreme People’s Court,the Supreme People’s Procuratorate,the Ministry of Public Security and the Ministry of Justice jointly issued a notice on certain issues concerning the handling of criminal cases of illegal lending(hereinafter referred to as the "Illegal Lending Opinions"),which clearly violates the relevant laws and regulations and,in serious cases,the actual annual interest rate of more than 36% of professional lending is punished as illegal business.The publication of the Illegal Lending Opinion unified the practice of judicial practice,but did not settle the dispute,and the theoretical circles even raised some questions about some provisions of the judicial interpretation.Therefore,this paper mainly from the criminalization of professional lending behavior and its application of the law and other related issues,in order to be able to provide a corresponding reference for the resolution of disputes.This article is divided into four parts,the main content is as follows:The first part is an overview of usury.The first part is an overview of usury behavior.It mainly includes the legal regulation of usury activities in my country.These legal regulations include the mainland and Hong Kong,Macao and Taiwan regions,as well as the current judicial practice of usury activities in my country.Understanding the relevant legal norms of usury,the harm of usury,the scale and number of cases of usury loans and other objective developments,as well as the professional characteristics of usury,is also conducive to the subsequent regulation of professional lending behavior to make reference.The second part mainly analyzes whether the professional lending behavior should be criminalized from the four perspectives of the positive legislative view of criminal law,the criticism and questioning of the expanding trend of illegal business crime,the economic effect of criminalization of professional lending behavior and the influence of criminal policy to eliminate evil crime on the criminalization of criminal behavior,and whether the crime of illegal operation is appropriate and reasonable.The third part is to "lending type" illegal business crime of the constituent elements,namely object,objective aspects,subjective aspects of the analysis and interpretation.And in accordance with the relevant provisions of the Illegal Lending Opinion,the objective aspects of the relevant illegal legal provisions,professional,serious circumstances of these three points to do further understanding and research.After this,the distinction between the crime of "lending type" illegal operation and its related crimes,such as the crime of illegal absorption of public deposits,the crime of usury-to-loan,and the crime of usury-toloan,is briefly analyzed,with a view to completing a concrete understanding of the application of the law applicable to the crime.The fourth part mainly aims at the professional lending behavior to illegal business crime of the bottom clause into the crime of the possible application of the dilemma put forward some solutions.It includes three aspects: adhering to the principle of balance of interests,perfecting the pre-legal norms and establishing new crimes to investigate criminal responsibility for professional lending.Among them,perfecting the pre-legal norms is mainly discussed from the four angles of setting up the access system of the lending subject,reasonably demarcating the interest rate range,classifying and managing the lending activities and perfecting the supervision measures.