High Rolling Of Research Problems

Because our country financial industry development is rapid, system management, mode of operation and a diversified and comprehensive development situation, new circumstances and new problems appear constantly, the criminal law to establish the high passed to sin around about the controversy over the crime constitution, at present, in the judicial practice, the usury rolling of cases have occurred, but very few theoretical discussion on this sin. High rolling of crime, the cognizance of\"usury\" problems in high rolling of crime, the cognizance of\"taking credit funds\" problems in time for re-lending to profit for the person is influential for the composition of high rolling of sin, using its own funds to lend usury the cognizance of the nature of the problem, and so on. Therefore, it is necessary for high rolling of the related issues for further detailed analysis of sin.In addition to the introduction and conclusion of this article is divided into three parts:The first part focuses on the legal form of the concept of criminal usury lending sin, object, objective and subjective aspects such as constituent elements and Gregory lending sin. In terms of the objective identified Gregory lending sin,"illegal gains" refers to the difference between bank interest income Gregory actors lending their proceeds paid to; both realistic illegal proceeds, including expectations of the illegal income, For the calculation of the illegal income expectations, should be subject to the agreement of both the actual loan. Our credit management system, including the normal legal to obtain loans and loans for use in accordance with the agreed actions. Thus, Gregory lending sin taking credit funds in financial institutions "taking" behavior, refers to the act in violation of legally obtained loans or loans for use in violation of an agreed, just have one of the two, that constitutes a "taking."Judgment "taking" is the core of the perpetrator of the actual use of the loan when it meets the purpose of the loan agreement, as long as the purpose of non-conforming use, that are "taking" behavior. Gregory lending to the crime,"Gregory," the judge should explain the context perspective, as long as the perpetrator lending rates to others above their own financial and credit institutions from "taking" rate loans, there is room for profit, which can be identified as "usury." Gregory found on the subjective aspects of the crime lending, usurious lending on the subjective understanding of the crime requires a deliberate, intentional and a direct perpetrator of willful negligence or indirectly, does not constitute the crime. Gregory lending should include willful sin willfully "taking credit funds" and intentionally "usurious lending" in two parts. The ultimate aim is the perpetrator reap benefits, the perpetrator must have to subjectively lending for the purpose of profit. Gregory lending on the object of the crime identified, because of the strict implementation of licensing and regulatory regime for the financial sector,"taking credit funds of financial institutions’ lending sin exists Gregory," Gregory lending to others "and other acts and the purpose of making profits, specifically violated the state loan, private and national interest rate management system, therefore, the object of the crime of usury lending credit funds should be for our management system. Gregory lending the object of the crime against our country credit fund management system.The second part mainly discuss the usury complicated identity problems in rolling of sin. In enterprises to its own funds in interest loans to others, and to the bank loans for their enterprise management, the enterprise loan, credit to another person, but to others for re-lending money isn’t the loan to the bank credit funds, such behaviour can not be identified as high rolling of sin, and this is the basic requirement of the principle of a legally prescribed punishment, is also an expression of the austerity of criminal law nature. Actor in loans from financial institutions, there is too much loan from financial institutions, beyond the project use, the amount of the loan has certain balance, will this surplus returns money to others, actor when applying for the loan to the project by the amount of money you need to use more clear, the deliberate how to apply for a loan from financial institutions in the loan application, and the more the balance of the interest money to others and to obtain interest, then, for the balance part person clearly belong to\"show the credit funds of financial institutions\", due to the implementation of the\"money to others\"behavior, and to seek interests for the purpose, is clearly in the constitutive requirements of high rolling of sin, the crime of high rolling. If the funds required to act in accordance with the project loans from financial institutions, but due to market changes or project adjustment, lead to extra funds, will this part of the balance of interest money to others, to seek interests. Because the person is according to the project need to apply for loans from financial institutions, there is no\"show the financial institutions of credit funds\" behavior, namely our country credit management order not to destroy, actor at that time also does not exist for the purpose of profit, so it was not high rolling of sin. Behavior person obtain loan from the bank, the profit of the legal right to the use of the money, even if the loan expires, it is not on time to repay the loan, in accordance with the law to Banks be liable for breach of contract, is a kind of civil liability, this is not enough to constitute a high rolling of sin of\"taking credit funds of financial institutions\". Second, the offender will receive the loan money to others, this is behavior person to use its own funds, belongs to the typical folk lending, did not infringe on state of the financial management of credit funds order, therefore, does not constitute a high rolling of sin. From the perspective of the regulation of high rolling of sin,\"taking credit funds of financial institutions\" and\"money to others\" two kinds of behavior, and seems to be clear about the\"taking action\" in the former,\"verifying behavior\" in the order of usury lent the law regulation of sin is only shows the logical relationship between the two kinds of behavior, as the actor to\"show the credit funds of financial institutions\", to\"money to others\" not emphasize the order on time. Therefore, regardless of\"taking credit funds of financial institutions\" occurred in the former, or\"money to others\" happened before, and shall not affect the usury rolling of the cognizance of the crime,-with directly determines the nature of what constitutes a crime, if the table is only for the few help loan or the leadership of the unit interior decision maker, is to help the unit did not benefit to apply for a loan, that is no profit, just lead the abuse of profit for others, their income ’is a kind of bribery, is the leadership of the help loan may constitute bribery or non-national staff taking bribes, the enterprise will not constitute a high rolling of sin. But if the enterprise in need help financing loans to firms, the company has received the table, the enterprise on the behavior of the implementation of the\"show the credit funds of financial institutions\" and\"money to others\" behavior, and for the purpose of profit, the infringement of the management order of credit funds in our country, meet the requirements of the composition of high rolling of sin, and shall be deemed to be high rolling of sin. If the offender is with its own name, to apply for a loan before lent to others, get advantage fee or service fees, is the obvious\"show the credit funds of financial institutions\" and\"money to others\" behavior, and table or the interests of the service charge is the profit, also violated the usury rolling of object of crime, constitutes a high rolling of sin. True relationship between the parties, and because the offender to pay\"advance payment\"relative to character, when its trading, will enjoy the corresponding discounts or preferential, therefore, the other party to pay the value of the goods to pay far more than the offender\"advance payment\" is also a reflection of the deal, secondly, as the market is volatile, the value of goods is also changing, it is difficult to exactly measure the value of goods is far more than the offender to pay the\"advance payment\"; Again, the offender for commercial transactions, profit is the goal of business, and to justify the pursuit, and did not violate the legal interests of high rolling of sin. Therefore, this situation does not conform to the high rolling of the constitutive requirements of sin, to this kind of situation should not be regarded as a crime. Staff of financial institutions also constitute the crime of embezzlement or misappropriation of funds, which appeared to imagine competition. Therefore, for this case, staff and the offender of the qualitative more complex financial institutions, shall be treated differently. Investigate.The third part focuses on lending to distinguish between issues Gregory crime and other financial crimes. Gregory lending sin and Loan Fraud, belong to the same class of crimes loans are endangering financial management order crime, there is a close link between the two. Gregory lending sin of taking credit funds in financial institutions "taking" behavior, refers to the act in violation of legally obtained loans or loans for use in violation of an agreed, just have one of the two, that constitutes a "taking.""Fraud" mainly for the purpose of illegal possession, while taking fictional facts and other methods, the relative who caught the mistake in order to achieve illegal possession, in essence, a kind of "cheat" behavior. Thus, Loan Fraud in the "fraud" and Gregory lending sin "taking" a very clear distinction:"Fraud" is the illegal possession for the purpose of "taking" no illegal possession for the purpose, the perpetrator has return meant only for the purpose of the loans is a false declaration or misrepresentation; Loan Fraud of "cheating" is not necessarily to use the loan to cheat, but the behavior of people in order to conceal their ability to repay loans through prospects for inventing the form of funds and projects, providing false guarantees to obtain loans. In addition, Gregory lending also includes another act of sin-"usurious lending to others," and Loan Fraud does not contain this behavior. Gregory lending crime and misappropriation of funds, both of which are intentional crimes are committed amount, the funds are for criminal acts, the objective aspect of crime, have certain "cheat","hide" behavior, subjective crime All are direct intention, can prepare the establishment of a crime, aborted attempts. Gregory lending behavior and the behavior of sin might overlap the crime of misappropriation of funds. The staff of financial institutions misappropriation of funds of the unit, Gregory lent to others to use, in fact, the staff of the unit after the unit misappropriation of funds to lend to others, taking credit funds problem does not exist, does not constitute the crime of usury lending. The staff of the financial institution can constitute the crime of misappropriation of funds or embezzlement of public funds. Gregory lending crimes and the crime of fraudulent loans, there are some similarities, such as both have the same subject of crime; objects are in violation of the right to use the credit funds. In judicial practice, there are two competing crime problem, Lapping of Legal Provisions relations most is competing special law and common law, law and light weight method. General principles of law deal with clauses of concurrence is particularly superior to the common law, a light weight method is superior to law. From the point of view of the law, the penalty of sin severity of natural persons obtaining credit and Gregory lending as the main crime in which roughly equal, and penalties for natural persons related crime in the former than the latter heavy units. Law principles heavier than light law departure seems to be the crime of obtaining credit more reasonable. But from the perspective of two crimes constitute a crime, the case of Gregory competing crime is defrauding the loan lending sin tolerance, common law and the formation of a special law relationship between the two at this time, the crime can be usurious lending as fraudulent loans The special case of the crime, according to a special law takes precedence over the common law principles should be usurious lending sin. So there are two principles of trade-offs when applicable. I believe that, in this case, a compromise approach, starting from the perspective of the practical operation of the principles can be applied to different under different circumstances. Specifically, in the case of a crime in accordance with the principles of the body is a unit of light-weight method is superior to law, in order to obtain a loan convicted and punished; crime is the main principle of the common law is superior to the case of natural persons in accordance with a special law to usurious lending convicted and punished.