Research On The Criminal Regulation Of Usury

In the system background of without direct and clear defined from Criminal Law and judicial interpretation, penalizing usury assigns its origin to case of Tu Hangjiang and Hu Ming from Wuhan city in2004. Since then, equal treatment of similar cases have occurred from time to time.That judicial practice deal with criminal regulation on usury not only is lack of uniform, but also lead to endless debate continues in academics:In the negationist's opinion, usury is not illegal business on the level of criminal law, its incrimination violates the the principle of legality; usury not only reveals the spirit of contract freedom, but also promotes economicdevelopment, incrimination is also against the principle of proportionality. Therefore, it is irrational to impose sanctions on usury. On the contrary, the approver focus on the social harmfulness of usury and affirms the legality of incrimination, but the theory is lack of response to "contravene the principle of proportionality" and couldn't clarify its application boundary further. The compromiser insists the legality of incrimination, but they denies the legitimacy of usury regulated by the crime of illegal business. Then, whether or not that usury of criminal regulation is legitimacy and rationality? If the answer is yes,how to clarify its application and solve the problem of judicial boundaries that possible countermeasures? To find the truth, under the current system of space-time background, by theoretical, empirical and normative methods, this paper expands ulterior speculative research on negativism in order to provide theoretical support, judicial reference and legislative improvement. The results showed that:usury can be classified as two different types which are" loan type" and " lending type ". Only the latter possesses administrative illegality. If judicial punish "lending-type" usury in the name of the crime of illegal business, there is no obstacles of rationality and legitimacy. On the basis of view, then writer tries to determine the applicable bordary about criminal regulation of usury and deal with the number of crime in related sins. Specific content is organized as follows:Chapter I:intruduction. To expand the practice of criminal regulating usury as the starting point, on the basis of review of academic research on the relevant usury of criminal regulation, writer highlights the theoretical and practical issuesurgent. Specifically, including the four major categories of judicial issues that include the reasonableness of criminal regulation of usury or not, the legality or not, how to control the border and how to deal with it. In addition, writer gives general description the purpose and significance of this research, the main contents and methods, basic research ideas.Chapter II:the reasonableness of litigation and discrimination about criminal regulation of usury. This chapter aims to deny rationality falsification criminal regulation of usury and certify system of reasonableness conventions. First, summarize rationality contentious crux about usury of criminal regulation, that is, discriminate about freedom and efficiency from the philosophical theory of value; the dispute to balance of crime and penaty from the explaination theory of criminal law. Secondly, the methodological basis of Interpretation crux crack (dialectics) and the applicable rules (differential mode advantage rule), and to seek legal thinking usury criminal regulation under reasonableness of integration. Finally, in a clear criminal regulation usury object (usury of lending to public") is based on the theory of value from the perspective of one hand to reveal the defect lies on the negative (negative commentators stress free and ignore other values, concerns and ignore the benefits of effective multi-dimensional), while the balance of crime refute the legality imbalance theory of relativity; hand stand on Chinese criminal law concept of crime and punishment from the harm to society justify punitive aspects reasonableness usury of lending to public"shall be subject to criminal regulation.Chapter III:the legitimacy of "lending-type"usury of criminal regulation laws and the applicable path. This chapter first induction node problem contested the legality of criminal regulation of usury (the usury of "lending to public" whether any "illegal business practices" and "Criminal Law" Article225paragraph4shall apply to serious cases "lending type" usury). Followed by the node seeking to defuse the premise consensus on administrative offense characteristics, bi-directional constraints to explain the relationship between the well and apply basic methods exemplified applicable law for a judicial interpretation of criminal law elaborated. Thirdly premise-based consensus to resolve the contentious each node problem, research shows that:As of illegal loans,"lending type" usury and "Criminal Law" Section225acts enumerated in paragraph3of the way belong to the same matter, and therefore applicable to Item4regulations. Finally usury laws apply criminal regulation of the path, that is, those who follow criminal justice based on the "lend-type" usury social harm of a judicial "front view ", the Criminal Code to determine the applicable charges can be funded as State Department of complementary norms "approach" to lock specific regulations objects.Chapter ?:border control about criminal regulation of "lending-type"usury. Border control is mainly to solve the technical problem of crime or path-type illegal business of usury, misdemeanor and felony of determining the boundaries of its implementation, in order to protect the national forecast possibilities and realize judical unity. In terms of physical border controls, emphasizing the possibility of illegal cognition as an essential element of criminal intent, to " illustrate law" related items enumerated prosecution standards as a benchmark to determine" the circumstances are serious,"the starting point to five times the amount as a starting point for prosecution the severity of the crime division of the node, similar to bank lending rates more than four times the interest calculated on the standard of the illegal proceeds. In addition, the case for a legal judgments first saw and pointed out its flaws lies.Chapter ?:judicial respond to criminal regulation of complex usury. This chapter is intended to address the judicial response to deal with the crime of usury-type forms of illegal business several issues, namely, crosses with the crime of illegal deposits from the public, taking credit funds from financial institutions, gambling crime, financial fraud behavior. Overall, you can implicated, Lapping of Legal Provisions and other issues related to criminal law theory to solve the complex usury. Also, note that based on the characteristics of the amounts committed, the punishment heavier charges should apply, not simply to define the legal punishment of misdemeanor and felony comparison. In a sense, that solution about the number of forms crimes is also a refutation to theory of imbalance between the crime and penaty.Chapter VI:Conclusion. The basic conclusion of this paper is that obstacles of rationality and legality about punish usury of "lending to public" by the crime of illegal business does not exist within the framework of the current China's criminal law,then pointed out the possible innovative points in this paper. Meanwhile, in view of the deficiencies in this paper and the follow-up studies are: causes analysis of criminal regulation on usury in foreign, the information paradox in restraining Criminal Law and how to deal with the principal. In addition, consideration for the possible of pressure-type legislation, further prospecte possible regulatory path about usury of "lending to public"(attributed to the crimes of disturb the market order, crimes of undermine the financial management order and crimes of against property).Innovation lies in the following:At first,on the criminal regulation of usury, it's the first time to discuss the usury differently(class usury as "loan type" and "lending type"), which is helpful to reduce crime rings and clarify theoretical confusion. There are not only different definitions from legal or ethical aspects, but also two different types---"loan type" and "lending type". In terms of the latter, the main distinction standard is whether or not lend to specific object, and current criminal law only restricts the usury involving "lending to public"(illegal loans). Misunderstanding about the legal nature of "lending-type" usury in the academia mainly has rooted in neglecting semantic rheology between"folk personal loans" and "private lending". Specifically,"private personal loans "(including usury lending to public" and nof "lending to specific persons") in the "Central Bank Approved" is consistent in the connotation and denotation within the "private lending" which is from the "Supreme People's Court Opinion", so the conclusion is clear that the "Supreme Court Opinions" doesn't formulate the usury of lending to public " or illegal behavior of loan.Secondly, in philosophy, the writer puts forword the specific way of thinking about the "Rule of Legal Thinking"that thingking inside the scope of law rather than outside. That is, to focus on the bigger picture, emphasis on program, insist normative analysis. That thinking of the bigger picture requires not only configuring the criminal law and the entire legal system, but also the dimension of historic and synchronic to deal with the relationship among legal and economic, political, social, moral, and so on. Program includes legal proceedings and value rank relations. Normative analysis requires to respect and safeguard the effective-ness of existing laws in case evaluation rather than criticize the existing legal system from the legislation level. There is no doubt that the specific way of thinking about the "Rule of Legal Thinking" is not only a basic requirement for criminal justice but also equally applicable to legal researchers.The third, for the basis of the first specification, writer indicates the characteristical of "openness of administrative law content" from normative system for the first time, and then search for support from the first specification on punish "lending type"of usury.In general, the guiding principle of administrative law is purposiveness, that is, for certain administrative purposes we construct certain rules artificially, and achieve management order by the coercive power. However, in order to avoid the serious lag between the development of administrative and the life of situation, from the standpoint of technical legislative, administrative law is filling with a large number of cases of legislative technology of "Exemplified Law", so legislator must keep openness of the administrative law contents in order to cover possible violations of administrative management order in future. Furtherly, if certain type of adminstrative wrongdoing has been incorporated into the track of criminal regulation, openness of administrative law content will inevitably lead to the openness about the extension of the administrative offense.The fourth, on the appliance of the second spscification,a new "analogy" explains---" Inner-law Analogy" is proposed for the applicable of "Exemplified Law"for the first time. The criminal law norms are combination of concepts and types. The concept is to reveal the nature of things, and the types only describe the phenomenon of things more or less.That applicable of "Exemplified Law" should abide by the type thinking and operate by the way of analogy. That is, in the specific application process, the judiciary uphelds the path of reasoning from the general to the specific, and puts similar types of criminal facts of social life under the broad terms of subsumption in the specification. The analogy (tentatively called "Inner-law Analogy") is different from the analogy prohibited by the principle of legality (tentatively called "Extra-law Analogy"), and the former only find it listed in the applicable limits from unscrupulous types, while the latter in the Criminal law have not been described or fixed,only is a "discover legal freely".