On The Validity And Interest Treatment Of Criminal Loan Contracts

With the rise of the informal finance industry,a large number of criminal cases involving the financial field have emerged in judicial practice,which will make the problem of civil-lending cases involving the intersection of criminals and civilians increasingly prominent.However,the problem of intersecting criminals and civilians has always been a major difficulty in judicial trials.Owing to the dominant trial mode of "emphasis on criminal trials and contempt for despise civil trials" in judicial practice and the strict boundaries between criminal legal norms and civil legal norms,how to determine the validity of the contract in the intersection of criminals and civilians and how to deal with the interest after the contract is recognized are often easy to ignore in judicial practice.Different courts have different ruling opinions on the cognizance of the validity of a crime-related loan contract.At the same time,after the perpetrator constitutes the crime of illegal fund-raising,the court's correct determination for the validity of the contract will play a decisive role in safeguarding the legitimate rights and interests of creditors and promoting the healthy and orderly development of economic order.At present,there are mainly three doctrines on the cognizance of the validity of a crime-related loan contract,which are "effective theory","invalid theory" and "eclectic theory".They point out their guiding role and essential defects in the validity of crime-related loan contracts from different perspectives,which have played an indispensable role in comprehensively understanding the validity of crime-related loan contracts.The paper sorts out different theories,and puts forward a new point of how to determine the validity of the crime-related loan contract and how to deal with the interest after the contract is recognized,namely the distinction theory and the limited protection theory.Firstly,the distinction theory refers to distinguish between the behavior of a crime-related loan contract and a unilateral criminal act.The act of one party is a criminal act,but the contract act concluded by both parties cannot be recognized as a criminal act.At the same time,the validity of the lending contract which involves the crime of illegally absorbing public deposits and the crime of fund-raising fraud should be determined its effectiveness based on the civil law rules of the formal finance contract,so as to clarify the validity of the contract in the cross criminal and civil cases.Secondly,the theory of limited protection is to revise the viewpoint of the validity of the crime-related loan contract.The effective theory on the issue of interest handling is that the interest obtained can be retained and the interest not obtained can be recovered.In fact,if the interest not obtained can berecovered,it will against the spirit of law.Therefore,the significance of the theory of effective protection is that the interest that has been acquired can be retained,and the interest that cannot be recovered cannot be recovered,which is more in line with the spirit of law.Finally,this paper puts forward the principle that the crime of illegally absorbing public deposits and the crime of fund-raising fraud will not damage the private interests due to the public welfare,and the protection of the private interests is limited to the spirit of the law,which provides a solid theoretical basis for dealing with the interests of the parties not involved in the criminal contract.