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Research On The Problems Of Private Loan

Posted on:2017-02-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z XuFull Text:PDF
GTID:1226330491964063Subject:Basic principles of Marxism
Abstract/Summary:PDF Full Text Request
Private loan involved in all areas of society, Through the historical development of private loan review can be found that Chinese ancient private loans crime mainly focused on lenders side behavior as usury crime, the phenomenon which make the borrowers behavior as crime began with the set up of financial markets after reform and opening up in our country.Through the case study,in our country the private loan,especially the type of private loan related to the public has a tendency to sin.Under the integration of the risk of criminal law theory and the social traditional in our country, the excessive embodiment of protection function of society is part of the reason,and the main one lies in the relevant judicial explanation from the legislation original intention.and led the private loan behavior to crime bigger. By interpretative theory,the basic line of private loan behavior constitute a crime or not is the norms in constitutive requirements.Due to the differences on the structure of value between civil and criminal law,the legal should avoid crime phenomenon of generalization on the premise of the principle of legally prescribed punishment for a specified crime.That means not only where an act is not expressly defined in the laws as a criminal act,it shall not be determined and punished as a criminal act,,but also where an act is expressly defined in laws as a criminal act,it shall be determined and punished as a criminal act in accordance with the law.With the act defined in the law,the key of teleological restriction the private loan behavior as crime is the material interpretation of norms in constitutive requirements.the core factor in all the constitutive elements of crime is"deposit".The current laws and regulations and judicial interpretations lose sight of this element,but in fact absorbs savings deposits is different from absorbs fund.To make clear the property of deposit behavior has fundamentally important significance to distinguish the private loan behavior makes crime or not.As the economic behavior should be placed on the market and let the parties resolve the problems by self,our country should no ta be excessive interference by punishment.Private loan belongs to the typical contract behavior, and based on party autonomy rights and obligations relations.the lenders in criminal behavior often reflect the capital profit-driven,and also has considerable understanding for the risk of the lending.That is not reasonable to punish the borrower and bias in favor after the occurrence of crime,and makes inconsistent value orientation with the current distribution system in China. So in private loan crime lenders often has fault and need to assume the responsibility of criminal and civil.The key of distinction between civil and criminal fraud in private loan is the object of the behavior is pointing to the property itself or the contract.The act constitutes the crime of fund raising defraud do not necessarily to lead to loan contract is invalid.As a new financing model,P2P lending belongs to private loan,and the legal attribute of P2P lending platform is information intermediaries.By clear the regulator of platform, and strengthen the supervision of capital safety and information disclosure, the legal risks of P2P lending platform could be reduced.Besides the physical problems,the "criminal first and then civil"model which used in the proceedings of private loan should be negated because it serious violation of the civil litigation.
Keywords/Search Tags:private loan, illegal fund-raising, interlocked civil and penal, the normal element of crime
PDF Full Text Request
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