Oppugnation About The Rationality Of Criminal Regulation Of Usury

From 2003 to 2012,there were a number of convictions and penalties for issuing usurious loans for the crime of illegal business operations in various parts of the country It was not until February 26,2012 that the Supreme People's Court made it clear in its reply to the Guangdong High People's Court that "illegal business operations should not be punished as a crime." Since then,there have been no judicial cases of usury in practice.However,because the Supreme Court in the "reply" only for the existing legislation and judicial interpretation of the judgment,the social harm of usury did not make a clear analysis and evaluation,moreover,the explanation of the reasons why usury does not constitute the crime of illegal business operation is relatively general,which leads to the discussion of the crime of usury in the theoretical and judicial practice circles still enduring In particular,in recent years,loan sharking and related activities have triggered various kinds of vicious social incidents,once again touching public opinion to discuss and attack loan sharking vigorously,and the voices of Criminal Regulation on loan sharking come and go And there have been such bills put forward during the two sessions,the State Council,the Central Bank,the Supreme Court and other usury has always been "strictly regulated by law" attitude.It is of great significance for judicial practice and legislative activity,as well as for economic and social stability and financial security to investigate whether usury has the necessity and legitimacy to be a crime.Based on the current economic and financial situation of our country,this paper refutes the view that usury is guilty and its basis.In addition to the introduction and conclusion,the article is divided into four parts:The first part is the basic problem of usury is outlined.This part first sorts out the different subject definitions of usury,points out the ambiguity and complexity of the definition of usury,and distinguishes usury from related concepts,especially folk loans It points out that usury is in essence a special kind of folk lending andborrowing,and it is one of the main forms of folk lending and borrowing This paper summarizes the unique environment provided by China's economic structure,financial system and historical culture for the development of usury at present.Finally,it combs the criminal regulations of usury in different periods inside and outside the region,which arouses the reflection on the crime of usury.The second part,the guilty theory of usury and its basis.This part mainly combs and integrates the guilty view of usury,and provides the object of query and criticism for the later discussion.The criminalists hold that usury violates the contract principle of equality and voluntariness,and seriously infringes the interests of individuals and society.There are two views about the regulation means: one is to insist on the crime of illegal business operation and the other is to set up the crime of usury and loan.The third part is the insufficient of objective basis of incrimination of usury.First of all,starting from China's financial environment,through Chinese and foreign.The third part is the necessity and legitimacy of the criminal regulation of usury.In view of the second part usury guilty theory and its basis,carries on the rebuttal from four aspects.It is pointed out that usury is a special kind of non-governmental loan,which does not seriously damage the fair value of the law However,the infringement on the personal rights and interests of individuals,property rights and interests,financial order,real economy and market order has not reached a very serious degree and need not be regulated by Criminal Law;and the harmfulness of usury itself,according to the means of Civil Law and Administrative Law,it is enough to guide and manage,and the Criminal Law in force is also enough to adjust the other criminal acts caused by it Usury plays a positive role in China and should not be regulated by Criminal Law.The fourth part is the social identity of the criminal law regulation of usury.Objectively speaking,the public opinion on the impact of criminal legislation is inevitable,but there are many problems.The public's hostility to usury starts from the deep-rooted concept,and in recent years,the selective media coverage of a series of social events,in part from the media,has led to the public misunderstanding of usury.However,from the actual demand,a large number of small and medium-sized enterprises and individuals,the demand for usury is universal,usury is the better way to obtain financial support.