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Research On The Subjective Sin Of The Crime Of Illegal Loans

Posted on:2012-12-08Degree:MasterType:Thesis
Country:ChinaCandidate:J ZhangFull Text:PDF
GTID:2236330368476831Subject:Criminal Law
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The crime of illegal loans destroys the market economy order; this crime always is the key attack object. But there are three different opinions on the subjective intent of this crime:subjective sin, fault and compound sin. This question involves many foundational theory questions. The most important of this dissertation is clarifying this question.This paper is divided into three sections. The first part of the article has analyzed three different viewpoints.Chapter one:First, the intentionally view divide into three doctrines. The first viewpoint includes the illegal behavior and result; the second viewpoint includes directly intentionally and indirect intentionally; the third viewpoint includes the behavior of illegal loan and the result of violating financial loan order.Second, the fault views include careless error and too self-confident error. But some positions only have the careless errors; also some positions are only the too self-confident errors.Third, the compound sin mainly also has three viewpoints. The first viewpoint thought“the illegal providing loan should be intentionally, the causing heavy loss is the error”. The second viewpoint“providing the amount loan should be intentionally, causing heavy loss is the error”.The author discovers different foundation on the basis of the summary of different viewpoints in chapter one. There are three argument foundations:“Taking the amount huge loan and causing the heavy losses”is the crime condition or the punish condition; the crime of subjective judgment is the behave or the result or the behavior and the result; what result of this crime.Chapter two:The second part of the article carries on the distinguishable analysis, for saluting viewpoint dispute and establishing argument foundation.“Taking the amount huge loan and causing the heavy losses”is crime condition. In our criminal theory, all the crime must become the crime condition; therefore "Taking the amount huge loan and causing the heavy losses" only is the crime condition. This point is good, because with the crime constitution is the only standard principle of recognizing the crime, and also is to the crime concept connotation reasonable assurance.What is the judgement basis of subjective fault?There are three main points“behavior”“the results”and“behavior and results”.The author says the point of behavior”is the most ridiculous,because it think that all the result of the intentional crimes were committed. "The behavior and results"point is not established on the basis of criminal law interpretation, but established on the basis of criminal legislation, so it is undesirable. According to our country criminal law 14th and the 15th stipulation, should pick "the result" point, namely the subjective crime judgment basis should be the result.What is the result of the crime of illegal loaning? The results about criminal significance is manifested in“Damage result”, according to harm analysis of the meaning of the results and harm result is a dangerous act for infringement on objective facts, not to the infringement of subjective value, which means harm result are facts and objective elements, not the value and subjective conditions. Scope includes not only material damage results also included non-material results, including not only the reality of dangerous results also included the possibility of harm results. Therefore, the crime of illegal loans harms the results should be "huge amounts or causing heavy losses."As regards the violation of the order of loans by financial institutions and financial institutions property rights, which is part of the content of the crime of criminal object. however, Some scholars believe that "violate state financial order of the loans"non-material results, confusing the value evaluation and non-material difference of objective facts.Chapter three:The last part of this article last part draws the conclusion after the disputing focal point analyzes, elaborating how observes a person’s face under the unification principle in the hosts and visitors to determine the illegal provide loan crime the subjective crime.”Huge or causes the heavy losses according to the author to the amount”the harm result different psychology manner analysis, may draw the conclusion:The illegal provide loan crime subjective crime is“a crime many”. But detailed word it, the author“is huge to the amount”the harm result is "knows perfectly well”“inevitably" for it; the subjective crime is directly intentionally. The author to“creates the psychological manner which the heavy loss" the harm result holds to have three kind of possibilities:The author to harms the result“to know perfectly well the possibility”holds“the laissez faire”psychological manner, then the subjective crime is indirect intentionally; But the author to harms the result the occurrence“to have to foresee”“has not foreseen”, then the subjective crime is the careless error; The author to harmed the result the occurrence“already to foresee”“readily believed actually could avoid”, then the subjective crime was the too self-confident error.this article intends to solute the subjective transgression of the crime of illegal loans in the solution process, namely the analysis subjective crime should be observes a person’s face in the unification principle foundation in the hosts and visitors, found this crime the harm result, and to harms the psychological manner to the author which the result holds to carry on the analysis, may say the harm result is the analysis subjective crime most basic appraisal basis. Moreover through this article writing, but also hoped may to solve the similar hard problem which in the criminal law article appears to make a reference, by the time can the better explanation criminal law article.
Keywords/Search Tags:struggle crime, argument foundation, crime shape
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