Criminal Regulation Of "routine Loan" Behavior From The Perspective Of Criminal-civil Relation

"Trap loan" is a new dissimilation form of private lending in China in recent years,in which criminal acts seriously infringe on the legitimate rights and interests of the people and destroy the socio-economic order.On the criminal law regulation of "Trap loan" behavior,judicial practice and theoretical research have generated a great controversy.Since 2018,when the national crackdown on gang crimes clearly focused on cracking down on crimes in the field of private lending such as "Trap loans" and "illegal lending",and especially after the relevant authorities issued the Opinions on Several Issues Concerning Handling Criminal Cases of "Trap loans" in 2019,the judicial authorities have changed the original mainstream view of prudently intervening in civil disputes and focusing on protecting the legitimate rights of lenders,It advocated large-scale involvement in the field of private lending by means of criminal punishment,shifted the focus of protection to borrowers,and dealt with a group of loan lenders according to the crime of fraud.The problems of upgrading and cross-border punishment emerged in large numbers.In sharp contrast to the vigorous judicial practice,the academic circle raised doubts about the legal status,conceptual role,identification rules,judicial application and other aspects of "Trap loan",which is a theoretical study with a cautious attitude.The private lending behavior involved in "Trap loan" is based on the principle of freedom of contract and autonomy of will.The criminal law should protect the legal interests and transaction order in it.The question is whether it is appropriate to take penal measures to intervene and adjust on such a large scale? How to grasp the boundary of criminal law intervening in civil relations? All these are worthy of further study.In addition,through the examination of extraterritorial practice,it can be found that many market economy countries have,to varying degrees,experienced loan forms similar to "Trap loans",and have formed their own unique regulatory schemes,not all of which are treated as crimes of fraud.In view of this,this paper,from the perspective of relationship between criminal law and civil law,aims to discuss the criminal regulation of "Trap loan" behavior in China.In addition to the introduction,the text of this paper includes four chapters.The first chapter is the current situation and reflection of criminal law regulation of "Trap loan" behavior.This part focuses on the analysis of the lending model,concept and connotation of "routine lending",as well as the shortcomings and deficiencies of existing regulatory methods.The second chapter is the determination of the research method of criminal law regulation of "Trap loan" behavior.On the basis of reviewing the current research path of relationship between criminal law and civil law and the theoretical dispute of the principle of the unity of legal order,this part establishes the research path of "Trap loan" criminal law regulation and the coordination standard of the legal area from the perspective of relationship between criminal law and civil law.The third chapter is the improvement of criminal law regulation of fraud "Trap loan" behavior.In view of the current problem that the judicial authorities improperly expand the identification standard of the fraud type "Trap loan" crime,this paper puts forward the basic position that the criminal constitution is the judicial standard for the criminal and civil division,and clarifies the identification rules of the fraud type "Trap loan" crime.The fourth chapter is the improvement of the criminal law regulation of nonfraudulent "Trap loan" behavior.Combined with the defects of the existing nonfraudulent "Trap loan" criminal law regulation system,which regulates the lending qualification with the crime of illegal business and the debt collection behavior with the crime of collecting illegal debts,it emphasizes the gradual improvement of the criminal law regulation system according to the legislative process of the pre-positioned laws,acknowledges the relative rationality of improving the legislative system with the appropriate addition of new crimes,and puts forward legislative proposals for the establishment of the crime of profiteering loans.The first chapter is about the current situation and reflection of criminal law regulation of "Trap loan" behavior.First,we need to clarify the meaning of "Trap loan"."Trap loan" originated from private lending behavior.Due to the profit seeking nature of private capital and the characteristics of risk avoidance,it has gradually developed and improved,forming a set of alienated lending models,which can be specifically divided into two stages: lending and debt collection.In the lending stage,the lender adopts the methods of fabricating the illusion of private lending and false payment facts to form false claims and debts;In the debt collection stage,the lender takes such methods as deliberately creating a default,arbitrarily identifying a default,maliciously increasing the loan amount,and "claiming" both hard and soft to further increase the false claims and debts,and finally obtains huge profits.Secondly,the legal nature of the concept of "Trap loan" needs to be clarified.At present,there are two different definitions of the concept of "Trap loan".The narrow definition concept equates "Trap loan" with the concept of crime,and believes that the implementation of "Trap loan" constitutes a crime;The broad definition view holds that "Trap loan" may be a criminal act or a general illegal act,which needs to be specifically analyzed in the case.There is a mistake in the narrow definition that the concept of "Trap loan" replaces the constitution of crime,while the broad definition is more reasonable.Finally,we need to reflect on the current "Trap loan" behavior of the lack of criminal law regulation.Through the research and analysis of 3168 collected criminal judgment documents of "Trap loan",relevant documents of judicial interpretation nature and local judicial documents,this paper believes that there are two deficiencies in the current criminal law regulation of "Trap loan" behavior.One is the improper expansion of the judicial identification standard of fraudulent "Trap loan" behavior;Second,the lack of criminal legislation on non-fraudulent "Trap loan" behavior.With regard to fraudulent "Trap loans",the judicial authorities have improperly expanded the scope of the determination of the crime of fraud,and punished the acts that do not meet the constitution of the crime as fraud,which is specifically manifested in the improper expansion of the criteria for the determination of fraud,the lack of evaluation of the victim’s wrong understanding,the lack of evaluation of the purpose of illegal possession,the improper expansion of the scope of punishment for attempted crimes,and the improper advance of the criteria for the determination of "starting" and the amount of attempted crime shall be punished according to the completed crime.As for the non-fraudulent "Trap loan",its criminal law regulation system was formed in the late stage of national crackdown on gang crimes and was finally completed by adding the crime of collecting illegal debts in the Criminal Law Amendment(XI)in 2021.After analysis and research,there are still some defects in the existing regulations,mainly reflected in the lack of criminal law regulations on the unfair lending behavior caused by abusing others’ weaknesses;The legal interest interpretation dilemma of illegal debt collection in "Trap loans" caused by the lack of pre standard of the People’s Bank of China;The criminal law regulation of usurious lending behavior with "routine" is pinned on the problem of dislocation of the adjustment of lending qualification.The second chapter is the determination of the research method of criminal law regulation of "Trap loan" behavior.The problem of criminal law regulation of "Trap loan" behavior involves the boundary of criminal law’s involvement in private lending relationship,which needs to be viewed from the perspective of relationship between criminal law and civil law.The existing research paths of criminal civil relations include four categories,namely,the purpose of responsibility division,the purpose of law domain coordination,the comparative study of theoretical jurisprudence,and the basis of cross cases.The above research paradigms can be divided into research on relationship between criminal law and civil law at the level of criminal law,at the theoretical legal level and at the procedural law level.Combined with the practical needs of the current research on criminal and civil relations,this paper proposes a research path of relationship between criminal law and civil law oriented by criminal law regulation,with the theoretical goal of improving criminal law regulation,and explores the harmony and unity of the overall legal order on the basis of the self consistency of criminal and civil law norms.The main method of its research is the coordination of jurisdictions,including the scientific nature of criminal legislation and the appropriateness of criminal justice.As for the standard of the coordination of legal areas,there is a dispute between the principle of the unity of legal order based on ontology and the principle of the unity of legal order based on teleology.The former has the defect of insufficient "supply side",which is reflected in the difficulty in unifying the legal effect of criminal law and civil law in logic,the circular demonstration of the standards of criminal violation and civil invalidity,and the formal understanding of the reasons for exceeding laws and regulations.The latter is more reasonable,which emphasizes the dialectical unity of criminal and civil value system and normative purpose rather than the logical unity of effectiveness.If the purposes of criminal and civil norms are the same,the unity of legal evaluation should be adhered to,the direction of civil adjustment and criminal punishment should be the same,and the legal acts in civil law should not be recognized as illegal in criminal law.When the purpose of criminal and civil norms is inconsistent,the direction of civil adjustment and criminal punishment is different.Even effective civil acts can be recognized as crimes,which should be tolerated under the perspective of the principle of unity of law order based on teleology.The third chapter is about the improvement of criminal law regulation of fraud "Trap loan" behavior.In view of the improper expansion of judicial identification standards for fraudulent "Trap loan" behavior,this paper believes that the criminal constitution should be the only standard for the judicial division between criminal law and civil law,and the identification rules of fraud should be determined in combination with the particularity of "Trap loan".When we affirm the crime of fraud,we should first deal with the problem of the coordination between criminal law and civil law.According to the principle of unity of legal order based on teleology,and according to the different stages of loan and debt collection of fraud in "Trap loan",the infringement of legal interests and the scope of infringement of legal interests are determined respectively.Secondly,the substantial limits of the constitutive elements of the crime of fraud in "Trap loans" should be distinguished from the objective elements and the subjective elements.As for the objective elements,on the basis of conforming to the four elements of fraud,misconception,disposition and property damage,fraud in "Trap loans" should also be distinguished from civil fraud in "Trap loans" from three aspects:whether the fraud content is the basic facts of the transaction,whether the degree of fraud is sufficient to generate misconception about the disposition of property,and whether the property infringed is protected by law and order.As for the subjective elements,in addition to the need for criminal intent,we should also make a substantive distinction between them based on whether they have the purpose of illegal possession.Finally,the identification of fraud in "Trap loans" should also pay full attention to selfhelp behavior and victim factors.The influence of self-help behavior is reflected in that the borrower and the borrower have concluded a true relationship of creditor’s rights and debt,and the lender’s use of "routine" to cheat back the principal and due interest does not constitute a crime of fraud;The impact of the victim factor is reflected in that the lender’s use of "routines" without the victim’s cognitive error does not constitute a crime of fraud,but the victim has already made cognitive errors,and only doubts about cognitive errors or has errors in the process of cognitive errors does not affect the determination of the crime of fraud.The fourth chapter is the improvement of the criminal law regulation of nonfraudulent "Trap loan" behavior.Some scholars put forward a proposal to amend the law to achieve appropriate punishment by improving the misdemeanor system.Considering the defects of the existing criminal legislation and regulation system and the practical need to prevent judicial analogy,this paper believes that this view is relatively reasonable,but we should pay attention to preventing the risk of rule of law that erodes the function of the criminal law to govern the country freely.The establishment of new crimes should be based on the defects of the legislative system and the need to protect legal interests,it conforms to the premise of the modesty of criminal law and is limited by the scientific nature of legislation.After reviewing the experience and lessons of extraterritorial regulation of non-fraudulent "Trap loan" behavior,after comparing "the supplementary criminal law regulation scheme for each stage of lending behavior to be punished separately" with "the unified criminal code regulation scheme for establishing the crime of profiteering",and combining the current regulatory status in China,this paper proposes to adhere to the unified criminal code regulation mode,gradually improve the criminal law regulation system according to the legislative process of the pre-positioned laws and the legislative improvement plan to realize the transformation from "interest rate" regulation to "behavior" regulation is proposed,and it is suggested to add the crime of profiteering lending to fill in the gap of punishment that some "routine lending" behaviors have social harmfulness and the need for criminal punishment,but do not meet the constitutive requirements of fraud,and to ease the impulse of judicial organs to analogy this type of behavior to the punishment of fraud.Thus,a criminal law regulation system of "Trap loan" is formed,in which the illegal operation crime is used to regulate the lending qualification,the fraud crime and the usury loan crime are used to regulate the "Trap loan" lending behavior,and the illegal debt collection crime is used to regulate the "Trap loan" debt collection behavior.