The Research On The Abolition Of The Crime Of Relending With High Interest

Crime of relending with high interest is a new accusation in criminal law of 1997, it has been about 20 years since it was established. In the wave of the reform of financial market, great changes have happened in the national credit market, due to the particularity of economic crimes, we should look at crime of relending with high interest with a vision of development, examine whether it fits with the times in the new historical conditions. This paper aims to study the legislative and judicial status of crime of relending with high interest, based on two dimensional perspective of the theory and practice, to explore the era value of the abolition of this crime, make sure that it can keep pace with the times.Besides the introduction and conclusion, the article is divided into four parts, a total of more than 40000 words.The first part, crime of relending with high interest's overview. Review the legislative process of it, that time the financial market is not yet mature, the strict management of credit funds is conducive to maintain the financial order, and the crime is the unique legislation in the process of financial reform in China. In the controversial concept of crime of relending with high interest, "taking" behavior refers to the violation of loan application form or agreed purpose, "high interest" refers to that relending interest rates higher than obtaining credit funds from the bank.The second part, crime of relending with high interest's dilemma of Judicial application. The amount of the Judicial application of crime of relending with high interest is very small, reflects low demand for regulating the crime by criminal law. Because a substantial fit between “taking" behavior of crime of relending at high interest, "cheating" behavior of crime of cheating loan, “fraud” behavior of crime of loan fraud, it is difficult to understand when they overlap. Due to the nature of money, the identity of the credit funds and lending funds are difficult to determine, the standard of criminal prosecution can not achieve. Criminal responsibility's trigger mechanism of crime of relending with high interest is affected, resulting in some actions which are consistent with the constitution of crime and prosecution standards are not be investigated for criminally responsible, and violate the principle of equal application of criminal law.The third part, theoretical justification of abolishing crime of relending with high interest. Proceed from seven perspective: crime of relending with high interest is inconsistent with the principle of legal interest infringement, reverse to the restraining of criminal law, violate the principle of equal application of criminal law, contrary to the adaptability of criminal law, contrary to the criminal law‘s social relevance, overhead the principle of freedom contract, hinder the development of the capital market. Conjunct with the expansion and narrows of crime circle, the cross theory of crime law and civil law, synthetically demonstrate from the field of criminal law, civil law and economic law, emphasize that crime of relending with high interest should not continue to criminalization, otherwise it will seriously hampers economic and social development and impact national value judgments.The fourth part, converge system after abolishing crime of relending with high interest. In order to avoid loopholes in legislation, after abolishing crime of relending with high interest, we should delineate crime ring reasonably, make early behavior “taking credit", which will reach a certain social harm, into crime of cheating loan, crime of Loan Fraud and other charges. Make the later behavior relending with high interest as illegal behavior, pursue its civil and administrative responsibilities. Qualitative analysis of behavior of credit staff in crime of relending with high interest reasonably, who reach the criminal standards, will be investigated for crime of acceptance of bribes, crime of non-national staff taking bribes, crime of illegal loans and so on. Strengthening the financial system by strengthening the self-discipline of financial institutions, strengthening the system construction of financial institutions, preventing and control credit risk, thereby reinforcing judicial intervention's front barrier.