The Narrow Application Path Of Financial Crime Under The Adjustment Of Dualism

Eleventh Amendment to the Criminal Law has made major revisions to financial crimes.The amendment aggravates the criminal penalties for financial crimes,and also expands the scope of the subject of financial crimes.Not only that,the judicial practice of financial crimes shows that after the rise of Internet finance,the number of financial crimes has shown an upward trend.Because of the continuous expansion of the financial crime circle in judicial practice,the following problems have arisen,such as the blurred boundary between financial criminal law norms and ordinary financial violations,the unclear concept of financial legal interests,and the functional failure of financial criminal law.Fundamentally,the judicial application of financial crimes is closely related to the understanding of financial criminal law to protect legal interests.According to the different subjects of legal interests,academic circles divide legal interests into individual legal interests,collective legal interests and national legal interests.According to whether the collective legal interest can become the legal interest protected by criminal law,there are monism and dualism.This paper argues that in the context of the rapid development of modern finance,we should agree with the dualism view,recognize the criminal law’s individual protection of collective legal interests,and give play to the criminal law’s role in preventing financial risks and deterring financial violations.However,the inappropriate understanding and application of collective legal interests in judicial practice will also lead to the expansion of financial criminal law.Therefore,in order to exert the function of legal interests to criticize legislation and guide the judiciary,it is required to have a correct understanding of collective legal interests,and to have a correct understanding of collective legal interests protected by criminal law.make restrictions.At the same time,it is also necessary to recognize that the interpretation of legal interests to guide the constituent elements of criminal law has a functional upper limit.When building a limited application path for financial crimes.It is also necessary to use principles and systems as supplements to balance the relationship between the protection of legal interests and the protection of human rights.This article is divided into four parts:The first part firstly sorts out the concept of financial crime,and points out that financial crime is a subset of the crime that destroys the socialist market economy.The object of my country’s financial criminal law is the financial order.In the theory of legal interests,the legal interest of order should belong to the collective legal interest.The second subsection points out that the current financial crimes have problems such as expanded application and formal interpretation of constituent elements.There are a large number of blank provisions to be filled in the financial criminal law,the extension of the "illegality" of fund-raising crimes,the abstraction of the interpretation of financial order and the connection between executions have led to the continuous expansion of the criminal circle of financial crimes.The third subsection clarifies the drawbacks brought about by the above problems.In the fourth subsection,it is pointed out that the fundamental reason for the above problems lies in the failure to correctly understand the legal interests protected by financial criminal law,that is,the second part needs to discuss the monism and dualism of legal interest protection.The second part introduces and analyzes the main viewpoints of legal interests protection monism and dualism.In the first subsection,it expounds that legal interest protection monism is divided into traditional monism and moderated monism.Traditional monism advocates that criminal law should abide by the standpoint of protecting individual legal interests,and behaviors that simply violate collective legal interests should not be included in the regulation of criminal law.middle.Moderated monism revises the traditional monism that does not adapt to the development of the times,and proposes that as long as collective legal interests can be reduced to individual legal interests,they can be protected by criminal law.The proponents of dualism believe that the relationship between individual legal interests and collective legal interests is ambiguous,and different subjects have subjective arbitrariness on whether collective legal interests can be reduced to individual legal interests,which is not conducive to a correct understanding of the scope of legal interests protected by criminal law.The second subsection expounds the dualism of legal interest protection that collective legal interest has the value of being protected by criminal law,and does not need to be subordinate to criminal law or be reduced to individual legal interest,but the protection of collective legal interest by criminal law needs to follow the principle of cumulative dangerous behavior.However the monistic scholars believe that the dualism of legal interest protection deviates from humanism.The third part clarifies that this article agrees that collective legal interests should be independently protected,and proposes amendments to the dualism.The first section points out that the attitude of sublation should be taken to the moderation monism.For a class of crimes that can divide collective legal interests into individual legal interests,the concept of collective legal interests is clarified by restoring collective legal interests to individual legal interests.This is the same as the function of dualism to guide the application of justice.However,the moderated monism has the following defects in guiding the judicial application process: First,it overemphasizes the dependence of collective legal interests on individual legal interests,which inhibits the value function of criminal law to protect legal interests in the financial field;second,improperly restore collective legal interests that cannot be reduced to individual legal interests,and restore them to individual legal interests,but the restored concept is still abstract;third,there are collective legal interests that cannot be divided into individual legal interests,and monism is helpless;fourth,it is overly inclined to protect personal legal interests,and reversely expands the criminal law’s regulation of general financial violations.The above shortcomings limit the function of moderated monism to explain collective legal interests.The above shortcomings limit the function of moderated monism to explain collective legal interests.The second section expounds that this article advocates the individual protection of collective legal interests,in order to play the function of legal interests to guide legislation and criticize the judiciary.This concept of legal interest protection is not only in line with the development and development of my country’s financial criminal legislation,but also in line with the trend of financial criminal legislation around the world.However,due to the abstract nature of collective legal interests,the shortcomings of the criminal law’s independent protection of collective legal interests are also obvious.Therefore,this paper proposes to revise the dualism,linking the collective legal interest with the core individual centrality of the constitution.At the same time,it is also necessary to expand the inclusiveness of dualistic viewpoints,and not to exclude the role of individual legal interests in demarcating crimes and non-criminals in violations of collective legal interests.In the fourth part,the applicable path of financial crime under the revised dualism is carried out concretely.In the first subsection,we first introduce the limitation of collective legal interests based on the "individualism" under the revised dualism.The specific development includes the following two points: First,we need to understand the limitations of collective legal interests.Carry out positive discrimination and reverse exclusion;second,Properly play the role of the principle of proportionality in order to achieve the effect of restricting the expansion of the scope of collective legal interests.Secondly,it is pointed out that it is necessary to play the function of amending the dualism to delineate the punishable boundary of financial criminal law,and it is necessary to take into account the individual legal interests and collective legal interests protected by financial criminal law at the same time.The second subsection points out that this paper believes that in addition to supplementing the shortcomings of collective legal interests with individual legal interests,it is also necessary to supplement the functional defects of the legal interest theory with other criminal law principles and schemes,and construct a diversified punishment for financial violations under the revision dualism system.