Research On The Criminal Law Regulation Of The Behavior Of "Trap Loan"

In recent years,with the rapid development of market economy and the increasingly active private lending market,a new type of illegal and criminal behavior called "trap loan" has appeared in Shanghai,Hangzhou,Jiangsu and other economically developed areas,and it has spread rapidly and become a high incidence trend.In the name of legal private loan,the "trap loan" illegally occupies the property of the victim.Once the victim is infected,he will easily lose his family,divorce his wife and children,and even lead some victims to commit suicide because of no way to go,which is very harmful to society.Therefore,it is urgent to use criminal law to pierce the "veil of civil affairs".However,there are some problems in the specific case handling,such as unclear legal provisions,contradictions in the application of the law,poor connection between the criminal and the people,improper expansion of the scope of criminal intervention,etc.,so it is urgent to find a proper path of criminal law regulation.Based on this,this paper tries to start from the concept source of "trap loan",on the basis of the empirical analysis of the judgment documents of "trap loan",and discusses the difficult problems and causes in the process of handling "trap loan" cases in judicial practice,with a view to putting forward constructive opinions on judicial practice.The article includes the following three parts:The first part introduces the current situation of criminal law regulation of "traploan".This chapter is divided into three sections: the first section is an overview of "trap loan",which introduces its conceptualization process and its boundaries with private lending,usury,and loan arbitrage.The second section introduces the typical process of "trap loan".The whole criminal process of "trap loan" is realized through one or more "arbitrage",including signing virtual high contract,forging bank flow,deliberately making breach of contract,transferring documents to balance accounts,maliciously building high loan amount and demanding debts with both software and hardware,so as to achieve the purpose of illegally occupying the borrower's legal property.The third section is the judicial empirical analysis of "trap loan".Through the analysis of the judicial documents of "trap loan" cases,this paper grasps the handling of criminal cases and civil cases of "trap loan" in judicial practice in recent years,and points out the direction for the following research.In the second part,the author makes a detailed account of the difficulties in the criminal law regulation of "trap loan".On the one hand,the "trap loan" belongs to a typical cross difficult case between the criminal and the civil.The interweaving of civil illegality and criminal crime makes the boundary between crime and non crime unclear,and the connection of civil to criminal procedure is not smooth.In the judicial practice,the "trap loan" and the private loan are more and more similar,and it is difficult for the judicial organ to distinguish them accurately.Moreover,the "trap loan" covers the double-layer forms of illegal and criminal,which does not necessarily constitute a criminal crime.These are the basic premise to distinguish the "trap loan" crime and non crime,and to regulate it in criminal law,which must be carefully considered.In addition,due to the obvious conflict of judicial norms on the cross issue between the criminal and the people,the lack of effective institutionalized experience,and the difficulty of entering the error correction procedure,a large number of "trap loan" cases in practice stay in the civil trial procedure,the success rate of civil to criminal transfer is not high,and the procedure connection is not smooth.On the other hand,there are some problems in the nature of criminal law.The imperfection of legislation leads to many puzzles in judicial application.The current normative documents do not define the concept of "trap loan" in a comprehensive way,lack of constitutive elements of crime,unclear legal provisions,and even there are contradictions and conflicts between normative documents,which often make the investigators at a loss.In judicial practice,the crime of fraud is often used to regulate the cases of "trap loan",and even the concept of "trap loan" has replaced the crime,which constitutes a case handling guide that goes beyond the bottom line of criminal law.In the case of obviously not conforming to the constitutive requirements of the crime of fraud,other charges in the criminal law should be regulated or acquitted according to the principle of legality.In the third part,the author analyzes the criminal law regulation path of "trap loan".First of all,we should follow the modest character of criminal law and intervene in the civil cases involving "trap loan" appropriately.At the same time,it constructs the rules of dealing with the civil cases related to "trap loan" and the thinking of identifying "crime and non crime".For civil cases that may be suspected of "trap loan" crime,civil judges should adhere to the principle of unity of formal judgment and substantive judgment,and timely transfer the criminal clues to the public security organ for review and handling.When judging whether the private lending involved in the case is a "trap loan" crime,we should focus on the effectiveness of the private lending and the specific elements of the criminal law.It is impossible for the civil legal and effective private lending behavior to constitute the crime of "trap loan".Only the civil negative evaluation of the private lending behavior can be guilty.Secondly,through the establishment of the procedural principle of "Criminal-Civil parallell" as the main and "Criminal before civil" as the auxiliary,and the integration of criminal and people's resources,we should explore the establishment of a judicial mechanism for the effective connection between the criminal and people.In the application of the procedure of "Criminal-Civil parallel",we should adhere to the basic position of the res judicata of the earlier judgment,properly handle the issue of restitution,and at the same time,we should prevent the defendant from suffering double losses while relieving the victim's economic losses;On the issue of criminal characterization,we should improve legislation,on the basis of correctly clarifying the elements of the criminal act of "trap loan",break down thecriminal act of "trap loan" into the existing criminal legal system,and convict and mete out punishment according to the existing charges strictly,and treat the expansion of punishment prudently.In view of the frequent occurrence of "malicious borrower" type "trap loan" and "taking advantage of people's danger" type "trap loan" in practice,we should still stick to the bottom line of the criminal law,so as to achieve the unification of law application,build a long-term mechanism to solve the illegal and criminal acts of "trap loan",promote the normalization of justice,and realize the optimization of the legal and social effects of "trap loan".