The Boundary Between A Civil Act And A Crime And Problems In The Identification Of Crimes Of "Trick Loan"

In the environment of China’s rapid economic development,the new criminal model-trick loan,its novel and high-frequency phenomenon,has become a social hot issue.Although the criminal act of "trick loan" has the appearance of private lending,it carries out the act of illegally occupying other people’s property,which is ultimately intended to illegally occupy the victim’s property."trick loans" have profoundly infringed upon the public property and self-determination,chaotic the orderliness of the financial,accompanied by a variety of criminal crimes,and affected the harmony and stability of society,economy and other aspects.Only by criminally regulating such new crimes according to law can we protect the legitimate rights and interests of the people and hold the fort to keep up appearances in all aspects.At the same time,it is also to ensure the continuous and in-depth development of the special struggle against triad and evil.At present,there are different understandings and understandings on many problems involved in the crime of "trick loan" in judicial practice.The author summarizes and analyzes the basic problems of "trick loan",the boundary between criminal and civil,the identification of charges and the number of crimes,hoping to attract jade and promote the improvement of the crime regulation and related research of "trick loan".This paper is divided into four parts:The first part analyzes the basic problems of "trick loan".Firstly,the core connotation of the illegality of the concept of "trick loan",so as to grasp its illegal possession purpose,illegal means and so on;Secondly,the obvious characteristics of"trick loan",such as illegality,concealment,organization,social harm and so on;Thirdly,the general behavior structure of "trick loan" can be summarized into five steps: making private loans,forging false running water,deliberately making or identifying breach of contract,maliciously increasing loans,and demanding debts with both hard and soft means;Finally,the essential difference between the crime of"arbitrage" and "private lending" is illegal and legal,"the crime of" trick loan "and"usury "have the essential difference of illegal possession and pursuit of profits for subjective purposes,and the nature difference between" routine "and" voluntary "in the formation of debt means.The second part analyzes the boundary between the violation of "trick loan" and the crime of "trick loan".Different forms such as illegality and crime coexist in "trick loan",and there is a confusion between the illegality and crime of "trick loan" in judicial precedents.Then it analyzes the reasons for this phenomenon,and puts forward that the crime of "trick loan" and the illegal behavior of "trick loan" should be divided by the comprehensive subjective and objective standards: one is the dual subjective identification standard of the lender’s subjective illegality and the lender’s subjective ignorance;The second is that the "trick loan" meets the objective recognition standard of "serious circumstances".The third part analyzes the four most relevant charges of the crime of "trick loan".First,there are many cases in which the crimes of "trick loan" are recognized as the crime of fraud,but the author believes that the crime of "trick loan" can be defined as the crime of fraud only when the victims of "trick loan" have to meet the requirements of being cheated and fall into a wrong understanding;Secondly,some criminal cases of "trick loan" in judicial cases are more suitable to be characterized as the crime of illegal business operation,and these cases are in line with the incriminating circumstances of illegal loan;Third,"trick loan" should not constitute a criminal organization or a crime of false litigation.Because the "Gang loan" organization does not have the essential difference of the control nature of the underworld organization,it does not constitute a gangland like criminal organization.The means of "trick loan" lenders to realize "creditor’s rights" through judicial proceedings is essentially a case of litigation fraud.The fourth part analyzes the number of crimes of "trick loan"."trick loan" is often associated with more than ten crimes because of its complexity,but there are differences in the determination of the number of crimes in the judicial decisions of local courts.For example,for similar cases,some courts will discuss the crime of fraud,while others will punish several crimes such as fraud and false litigation.The author analyzes the problems arising from local precedents,and puts forward that "trick loan" is divided into two stages before and after manufacturing "creditor’s right" and realizing "debt",as well as whether there is a change in behavior mode between the two stages,so as to be divided into single "trick loan" crime and compound "trick loan" crime as the screening standard for the number of "trick loan" crimes.