Research On Judicial Identification Of "Routine Loan" Crime

In recent years,“routine loan” cases frequently appear in the public's vision,“car loan”,“campus loan”,“beauty loan”,“training loan” and so on,the harm is increasingly prominent.It is not a new concept of criminal law,nor is it a new charge,more and “usury”has an essential difference.To be specific,“routine loan” means that the doer,by deceiving or coerce the borrower into signing a loan agreement,falsely increasing the actual loan amount,charging various fees such as “head-cutting interest”,“viewing fee”and “home visiting fee”,willfully designing default trap,hiding the repayment evidence of the borrower,and realizing the “creditor's right”stage in the later stage.Use of judicial means or violence and other means to achieve the purpose of illegal possession of the borrower's property.On April 9,2019,the“The Supreme Court” “Supreme Prosecutor's Office” “The department of justice”“The Ministry of Public Security” jointly issued four documents including Opinions on Several Issues concerning the Handling of “Routine loan”Criminal Cases(hereinafter referred to as the Opinions),which played a unified role in standardizing the thinking and clarifying the standards of handling cases in many regions.But,there are still some controversial issues to be solved in judicial cognizance: First,the issue of criminalization and cognizance of charges.Whether an act can be criminalized should be strictly in accordance with the principle of legality.What kind of charges should be determined according to the criminal constitution of the criminal law,so“routine loan” may constitute a crime of fraud,extortion,false lawsuit,illegal detention,crime of provoking trouble and other crimes.Second,the determination of joint crime.Due to its outstanding property of profiteering and “routine”,“routine loan”,through rapid development,has increasingly refined and specialized internal division of labor,and presents the characteristics of multiple people participating in crimes.“Routine loan” mostly involves joint crime,in the joint crime identification problem,we should adopt joint behavior theory;In the meantime,according to the role and function of each actor in the generation and implementation of the joint crime,the principal offender and accomplice are divided.Third,the determination of the number of crimes.Different combinations of criminal acts may lead to different counts of crime.In judicial recognition,it is necessary to focus on the two stages of fictitious creditor's rights and debts and illegal debt collection,and to make a specific judgment of “one act” or “multiple acts” and the relationship between acts.Fourth,the determination of criminal amount of “routine loan”.When determining the criminal amount of “routine loan”,one side,it is necessary to distinguish it from folk loan.According to the Provisions of the Opinions,the concept of whole property is introduced to give a negative evaluation on the whole.On the other hand,three cases need to be distinguished to identify the amount of accomplished and attempted.In judicial practice,we should not only strike the “routine loan” crime accurately,but also pay attention to protect and respect the real and effective legal relationship between the parties.