The influence of the new regulations on private lending on the handling of criminal offences; Private lending does not constitute the crime of illegal business —— Based on the latest judicial interpretation and some opinions of the Supreme Court, on August 6th this year, the Supreme People's Court promulgated the Provisions on Several Issues Concerning the Applicable Law in the Trial of Private Lending Cases (hereinafter referred to as the Provisions on Private Lending Cases), which came into effect on September 1. This judicial interpretation has aroused widespread concern and heated discussion. According to the Report on the Development of Private Finance in China released by Southwestern University of Finance and Economics in 20/0/4, the scale of private financial market in China has reached 5.28 trillion yuan in 20/0/3, and 22.3% of households have made private financial loans. This market is still growing. The private lending disputes caused by this have also increased rapidly year by year, from 594,000 in 201/kloc-0 to 20 1410.24 million, and the number of cases concluded in the first half of 20 15 reached 526,000. Private lending disputes have become the second kind of civil litigation after marriage and family disputes. Some of these private lending behaviors have already involved criminal offences. In this regard, the Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising issued by the Supreme People's Court on 20 10 has made detailed provisions, and the crime of illegally absorbing public deposits and the crime of fund-raising fraud can be convicted and punished according to specific circumstances. But this only involves the link of "borrowing" in private lending behavior. At present, there is no legislative interpretation or judicial interpretation to clarify whether some situations existing in the "lending" link of private lending can be identified as criminal acts. In judicial practice, some courts have convicted and punished some private lending behaviors for the crime of illegal business operation. For example, in 2003, the case of Tu Hanjiang and Hu Min's illegal business operation in Wuhan and the case of He Youren's illegal business operation in 201Luzhou City, Sichuan Province were called "the first case of usury". This paper holds that at present, private lending behavior does not constitute the crime of illegal business operation without the revision of the criminal law and the relevant legislative interpretation or judicial interpretation. The reasons are as follows: First, the higher people's courts in Guangdong, Zhejiang and Jiangsu provinces all support this view in different forms. Guangdong Higher People's Court sent the first-instance judgment of Maoming's "Black Boss" Li Zhengang back for retrial on 20 14. On September 20 14 18, Guangzhou Intermediate People's Court made the first-instance judgment again. As for the crime of illegal business operation in Li Zhengang, the court held that usury was illegal, but it was not enough to be regarded as the crime of illegal business operation according to the law. The Higher People's Court of Zhejiang Province said in the investigation report on the intersection of punishment and name in fund-raising cases: "At the legislative level, we should consider whether to stipulate separate charges for some acts that have serious social impact and bad circumstances and take usury as a business occupation. Before the law is amended, some behaviors with serious social impact and bad circumstances and usury as a business occupation can be regulated within the scope of illegal business through legislative interpretation. " That is to say, in the absence of the above situation, even if the relevant behavior has serious social harm, we should adhere to the principle of a legally prescribed punishment for a crime and not treat it as a crime. [1] The Higher People's Court of Jiangsu Province held in its "Investigation Report on Loan-sharking Crime in Jiangsu Province under the Current Macro-control Background" that "at present, it is not appropriate to identify the behavior of individuals or units issuing high-interest loans with their own funds as illegal business operations. The specific reasons are as follows: 1. It is against the legislative intention of the criminal law to investigate the criminal responsibility of this kind of folk usury. Even if the act of lending usury by individuals or units with free funds belongs to illegal financial activities, according to Article 22 of the State Council's Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities, "those who set up illegal financial institutions or engage in illegal financial business activities, which constitutes a crime, shall be investigated for criminal responsibility according to law", but judging from the revision process of Article 225 of the Criminal Law and the filing and prosecution standards of the Supreme People's Procuratorate and the Ministry of Public Security, "engaging in illegal financial business activities" has not been included, and this kind of treatment is punishable. The amendment to the Criminal Law adds the third item "engaging in securities, futures or insurance business illegally without the approval of the relevant competent departments of the state" to Article 225 of the Criminal Law, including securities, futures, insurance and other businesses, but excluding financial business. Later, the Criminal Law Amendment (VII) amended the above content as "illegally engaging in securities, futures, insurance business or illegally engaging in fund payment and settlement business without the approval of the relevant competent departments of the state". It only includes "illegal fund payment and settlement business" and does not include "illegal financial activities". Therefore, it is not included in the criminal law, and it is against the legislative intention to identify the crime of illegal business operation as "other illegal business operations that seriously disrupt market order" in the fourth item. 2. Investigating the criminal responsibility of this kind of folk usury will lead to a serious imbalance of charges. Lending with high interest rate on the basis of defrauding bank loans and changing the use of loans not only abuses the trust of banks, destroys the financial order, but also increases the risk of bank loans. The risk of usury with free funds is that the actor's own funds may not be recovered. Compared with the two, the former is far more harmful than the latter. However, according to the criminal law, the maximum statutory penalty for the crime of usury is only seven years' imprisonment, while the maximum statutory penalty for the crime of illegal business operation is as high as fifteen years' imprisonment. The act of usury with free funds will be investigated for criminal responsibility for the crime of illegal business operation, and the result will inevitably lead to the paradox of heavy punishment for minor crimes and light punishment for serious crimes, which directly violates the basic principle of adapting crime to punishment. 3. It will have a great negative impact to investigate the criminal responsibility of this kind of folk usury. In practice, it is not uncommon for individuals or units to issue high-interest loans with their own funds, and many of them are judged and mediated by the court as civil cases. If such cases are identified as crimes, it will not only strike on a large scale, but also cause widespread complaints and protests against many effective civil cases. In addition, the banking regulatory bureau, as a statutory body, has the right to supervise and deal with private usury. The emergence of this situation in large numbers has a certain relationship with the poor supervision of the management organs. If this situation is identified as a crime, it may lead to the management organ being more negligent in supervision, and the court will impose a penalty instead of a charge, which violates the principle of modesty of criminal law. " [2] Second, at present, the Supreme People's Court tends to make a restrictive interpretation of Item (4) of Article 225 of the Criminal Law (crime of illegal business operation) "other illegal business operations that seriously disrupt market order". [3] the Supreme People's Court, written by a number of senior judges, holds that the determination of "other illegal business practices that seriously disrupt the market order" in the fourth paragraph of Article 225 of the Criminal Law should be clarified one by one through legislation or judicial interpretation. If it is unclear, it should be rejected according to the principle of "nullum crimen sine lege". (Special note: This part was written by Justice Gao Jinghong, a full-time member of the Judicial Committee of the Supreme People's Court. It must be pointed out that the Reply on Identifying the Nature of Tuhanjiang's Illegal Financial Business (hereinafter referred to as the Reply) made by the Second Criminal Court of the Supreme People's Court in response to the case of Tuhanjiang and Hu Min's illegal business operation in Wuhan in 2003, determined that "Tuhanjiang's illegal lending to others is an illegal financial activity", in fact, it acquiesced in the second court of Wuhan to "engage in illegal financial activities" without legislative or judicial interpretation. At present, this practice is obviously inappropriate and violates the legislative intention of the criminal law. The specific reasons can be found in the above-mentioned point 1 in the view of Jiangsu Higher People's Court, and will not be repeated here. In addition, from the perspective of legal effect, the "Reply" can only be applied to the case of Tu Hanjiang and Hu Min's illegal business operation, and should not be applied to other cases. Third, according to Article 26 of the Provisions on Handling Private Lending Cases, if the lender requests the borrower to pay interest at the interest rate agreed in the contract, the people's court shall support it, except that the interest rate agreed by both parties exceeds four times the one-year loan market listing rate when the contract is established. The "one-year loan market quotation" mentioned in the preceding paragraph refers to the one-year loan market quotation issued monthly by the National Interbank Funding Center authorized by the People's Bank of China from August 20th, 20th, 20th19th. Article 27. The loan amount specified in debt certificates such as IOUs, receipts and IOUs is generally recognized as the principal. If interest is deducted from the principal in advance, the people's court shall confirm the actual amount lent as the principal. Fourth, the highest legislature and the highest judicial organ make restrictive explanations on the blank charges in the crime of illegal business operation, which is in line with the modesty of criminal law. The crime of illegal business operation is a so-called blank crime decomposed from the most famous pocket crime in the old criminal law-"the crime of speculation and profiteering". Generally speaking, when describing the charges of specific crimes in the specific provisions of criminal law, legislators can only determine the type expression of specific crimes by referring to norms or systems. Item (4) of Article 225 of the Criminal Law "Other illegal business operations that seriously disrupt the market order" is a blank charge of the crime of illegal business operations. After the implementation of 1997 criminal law, the crime of illegal business operation tends to expand, which is embodied in the fact that the legislature amended this crime twice through 1999 criminal law amendment and 20 10 criminal law amendment VII. So far, the highest judicial organ has interpreted the following acts as "other illegal business operations that seriously disrupt market order" in the fourth paragraph of Article 225 of the Criminal Law through several judicial interpretations. That is, introducing foreign exchange fraud, illegally engaging in publishing business, illegally publishing publications that seriously disrupt social order and market order, illegally operating telecommunications business, illegal pyramid schemes or disguised pyramid schemes, producing and selling harmful feed and animal drinking water, driving up prices, hoarding rare products, setting up obscene pornographic websites without authorization, issuing and selling lottery tickets without authorization, and illegally producing and operating fireworks and firecrackers. It can be seen that no matter whether the business qualification, content and method are illegal or not, as long as the business activities are determined to seriously disrupt the market order, the crime of illegal business operation will become the "only choice" without more suitable charges. The modesty of criminal law means that legislators should strive to effectively prevent and control crimes with little or no punishment. This includes the modesty of "crime" and the modesty of "punishment". Compared with the modesty of punishment, the modesty of crime is more important. The modesty of "crime" requires limiting the adjustment scope of criminal law. From the legislative point of view, criminal legislation is required to use blank charges as little as possible. In the case of blank charges, from the judicial point of view, the smaller the space for interpretation, the better. However, in today's China society where social governance is "excessive crime" [4], it is hoped that judicial organs at all levels will properly control the interpretation space according to specific cases, which will only infinitely amplify the negative effects of blank charges and lead to the crime of illegal business operation becoming a "pocket crime" out of control. Therefore, it is the only feasible choice to limit the interpretation right of the crime of illegal business blank to the highest legislature and the highest judicial organ. Note [1]: Investigation Report on the Cross-naming of Criminals in Fund-raising Cases, published in Criminal Trial Reference, vol. 89, p. 235, Law Press, 20 12. [2]: Investigation Report on Loan-sharking-related Crimes in Jiangsu Province under the Current Macro-control Background, 92nd episode of Criminal Trial Reference, pp. 238-239, Law Press, 20 13. [3]: Crimes of Criminal Law (4th edition), edited by Zhou Daoluan and Zhang Jun, p. 488, People's Court Press, 20 13 edition. [4]. He Ronggong: "Critique of Social Governance's" Excessive Criminalization "from the Philosophy of Law", in Chinese and Foreign Law 20 15 No.2. ..

Legal objectivity:

Article 313 of the Criminal Law of People's Republic of China (PRC) refuses to execute the judgment or ruling of the people's court, and if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or fine; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.