Evaluation Of Usury Behavior Under Criminal Law

Usury is an alienated form of private lending.It is undeniable that under the current background that bank loan policies are tilted towards state-owned enterprises,private loans such as usury,as a useful supplement to the country's formal financial system,have eased the financing difficulties of private small and medium-sized enterprises to a certain extent,and have a certain effect on the active market economy.However,usury out of state supervision may not only cause systemic financial risks,but objectively it is also an exploitation of the borrower's property interests,and it gives rise to some other types of crimes as well.Faced with the dual nature of usury which is beneficial and harmful objectively,how to regulate or evaluate usury behavior has been a big controversy in criminal judicial practice and criminal law theory.In 2019,the "Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Lending" issued by relevant agencies tried to regulate such cases through the crime of illegal business operations.However,at the practical and theoretical levels,the dispute over the criminal law evaluation of usury has not been resolved.The controversy that still exists is that relevant judicial interpretations will lead to excessive supply of criminal law norms,and the scope of application of illegal business operations should be further restricted;Or,the relevant judicial interpretation still fails to make up for the shortage of the standard supply of criminal law,we should further expand the punishable scope of usury behavior.In addition to clarifying the aforementioned problem awareness and the basic viewpoints and research methods adopted in the introduction,the main body of this article includes five chapters.The first chapter is the definition of usury.In this part,the connotation,characteristics and basic types of the concept of usury will be clarified.The second chapter is the position of usury criminal regulations.On the basis of reviewing the position change of relevant judicial practice theory and comparative law investigation,this chapter clarifies the basic evaluation position that should be followed by regulating usury behavior through criminal law.The third chapter is about the criminal laws and regulations of commercial usury.On the basis of justifying the penalties of operating usury behaviors,the legitimacy and limits of punishment based on the crime of illegal business operations are clearly defined.The fourth chapter is about the criminal regulation of non-business loan usury.Combining with the legal principles of contract freedom,the basis for the punishment of non-operating usury and its realization method are clarified.The fifth chapter is about the criminal laws and regulations of usury-associated behavior.In order to avoid the sufficiency of criminal law regulation,several common behaviors associated with usury are discussed in this chapter.In addition,in the concluding part,a systematic summary of the full text's problem awareness and the central topic and conclusions are made.The first chapter is the definition of usury.The task of defining usury is to determine the scope of the criminal law regulation."High interest rates" are a necessary but not sufficient condition for the establishment of loan sharks.Defining the concept of usury needs to clarify the distinction between high-interest private loans and usury.In this regard,there are two different defining perspectives,economics and law.The definition of economics cannot meet the requirements of uniformity and comprehensiveness of legal evaluation.The connotation of usury should be defined from the perspective of law.To define usury from the perspective of law,there are certain positions of interest rate standard theory and legal effect theory.Among them,the position of the interest rate standard theory is more reasonable.Clarifying the basic characteristics and types of usury helps to fully grasp the connotation and extension of usury.Usury is essentially a kind of private lending that exceeds the legal interest rate limit.Disrupting the financial order and infringing on the overall property of others are the legal natures of usury.Interest rates exceeding the profit rate of the enterprise is the social nature of usury.Violent debt collection is only an accompanying behavior of usury Rather than its characteristics.According to different standards,usury can be divided into operating usury and non-operating usury,production usury and non-production usury,explicit usury and implicit usury.The second chapter is the position of usury criminal regulations.Regarding the criminal law system of usury,there has been a shift from innocence to guilt in judicial practice and doctrine.The core controversy underlying this shift of position is whether the usury is socially harmful.Even if the social harmfulness is affirmed,it is doubtful that the criminal law must be used.In comparative law,it is not uncommon to affirm that usury behavior constitutes a crime.In our country,as to how the criminal law should regulate usury behavior,judicial practice actually adopts a unified treatment model that non-commercial usury is punished in accordance with the crime of illegal business operations.However,in view of the different characteristics of different types of usury,a unified processing mode should not be adopted.In principle,different criminal laws and regulations should be adopted according to different types of usury behavior.The following criminal laws and regulations should be adopted for usury behavior: First,for usury's criminal laws and regulations,we should distinguish between interpretative and legislative positions.Interpretative positions have priority.Second,for usury's criminal laws and regulations,we should adopt the interpretative and legislative regulatory models respectively according to whether the usury is a business usury or a non-business usury.Third,the criminal law system of usury behavior should be distinguished from the criminal law system of usury behavior and the criminal law system of usury-associated behavior.Chapter three is about criminal laws and regulations on commercial usury.Commercial usury objectively violates the order of financial supervision,and punishing commercial usury also meets the requirements of the second standardization of criminal law.From the perspective of interpretation theory,the evaluation of commercial usury as an illegal business crime does not violate the principle of statutory crimes and punishments.The relevant judicial interpretation is worthy of approval in principle.However,it is worth noting that when applying the crime of illegal business operations to evaluate usury behavior,we should avoid the drawbacks of excessive supply in the criminal law and reasonably limit the scope of regulation of the crime of illegal business operations.First,the illegality in the criminal law is punishable,and business usury that is not protected by the civil law and administrative law does not necessarily constitute the crime of illegal business operations in the criminal law.Second,the scope of the crime of illegal business operations should be reasonably limited in accordance with the provisions of the saving clause in the criminal law.Third,we should limit the scope of conviction for operating usury reasonably according to the theory of interest measurement,including the purpose of usury(real economy or virtual economy),the calculation method of usury interest,the realization method of usury debt,the objective risks of usury lending and cost,comparison of the cost of financing between usury and formal financial institutions.The fourth chapter is about the criminal regulation of non-business loan usury.Non-commercial loan usury did not infringe on the order of financial management.Therefore,it does not constitute a crime of disrupting the order of the socialist market economy.Non-operating usury infringes the entire property of the borrower.However,it is difficult for the existing property crime system to regulate non-operating usury effectively.Because the existing property crime system mainly protects the individual property of the property owner rather than the entire property.Therefore,at the explanatory level,non-operating usury does not constitute a crime.Although non-commercial loan usury did not infringe the order of the socialist market economy,it should not be completely evaluated as a product of contract freedom,and they should be acquitted based on the requirements of respect for the autonomy of private law.Because the equal status between the contracting parties is the prerequisite for the establishment of contract freedom,and the balance of interests between the contracting parties is the inherent requirement of contract freedom.In the non-operational usury,usury lenders actually used their advantageous economic position,restricted or even deprived the bargaining ability of the counterpart,and thus reached the private lending that resulted in the imbalance of interests between the two sides.It can be seen that in the legal evaluation of non-commercial usury,there is always a conflict between the contractual freedom in the formal sense and contractual freedom in the substantive sense(contract justice and equality),and the latter should be given priority in the measurement of interests to some extent.Since non-commercial loan usury cannot be criminalized at the interpretative level,non-commercial loan usury behaviors should be regulated by setting up "extreme profit crime" at the legislative level.It is necessary to reasonably limit the punishment scope of non-business usury in order to avoid its arbitrary expansion.In view of the fact that non-business usury is essentially the lender taking advantage of its dominant position to rob others' legal property,in order to balance the tension between the principle of freedom of contract and the principle of justice of contract reasonably,the crime of profiteering should be limited to the situation where the actor actively uses his dominant position or actively creates a dominant position.The fifth chapter is about the criminal laws and regulations of usury-associated behavior.The associated behavior of usury mainly includes the behavior of obtaining usury funds,the behavior of privately realizing the principal and interest of usury,and the behavior of routine loans.The act of obtaining usury funds includes the act of obtaining usury funds through illegal means and the act of obtaining usury funds through legal means.The former involves the combined punishment of the crime of illegally absorbing public deposits(crime of fraud in financing)and the crime of illegal business operations(crime of huge profits).In some cases,it should be handled as an implicated offender.The latter involves the applicable relationship between the crime of on-lending usury and the crime of illegal business operations(the crime of huge profits).In terms of privately realizing usury,it is not appropriate for judicial practice to only evaluate its means and behavior.In this case,it should be considered that the status of usury borrowers should be distinguished.In the case that the borrower is an individual,the property crime should be simultaneously evaluated purpose behavior and means behavior in principle.The "routine loan" is a generalization of the characteristics of different types of property infringements,not an independent crime.Therefore,the criminal law evaluation of "routine loans" should strictly follow the principle of legally prescribed crimes and punishments.Only when the relevant behavior complies with the principle of statutory punishment can it be convicted.