对吴英案的分析与思考

发布时间：2018-05-30 09:56

本文选题：集资诈骗罪 + 死刑　；参考：《湖南大学》2014年硕士论文

【摘要】：三十年多前,中国在法制与法治的两条迥异的道路上做出了艰难的抉择,最终弃法制而选择了法治国家,依法治国为基本治国方略。①今天,中国的法治国家建设呈现出两个重要特征：一是渐进性,法治进程无法摆脱经济、政治、文化等各种条件的制约；二是在显示其明显的中国特色的同时,也显示人类出不断追求进步的普遍特性。[1]三十多年后的今天,社会各界广泛讨论的吴英案,其背后的深层原因正凸显出法制道路的瓶颈。案例研究的价值与意义就在于,一个具体的案例能够反映出具有普遍意义的法律问题。对吴英案的分析,小而言之,是对吴英的集资行为究竟应该如何定性,即是属于非法吸收公众存款罪或者集资诈骗罪的经济犯罪行为,还是根本不构罪,而只是民事借贷关系以及作何处罚的分析。吴英案从犯罪要件的主观方面和客观方面都找不到吴英行为构成犯罪的依据,吴英的行为属于民间借贷关系,应对其做出无罪判决。大而言之,是对经济类犯罪是否适用死刑的探讨。在社会主义市场经济的时代背景下,我们可以理解立法者出于维稳需要,试图用重刑来释放社会蕴藏的矛盾。但同时我们更要清醒地认识到,维稳只是一种和谐的迹象,并不是和谐的本身。经济犯罪罪恶深重,但归根结底,遏制犯罪的源头在刑法的上游,及社会主义市场法治建设,社会主义市场经济管理制度的完善。法院对吴英的判决有违法治理念,是国家本位的国权刑法的体现,其背后反映了中国法治建设理论与实际还存在很大的偏差。以民权刑法思维为指导的法治建设应是保障人权的、与人民利益相适应的法治建设。从吴英个案引发的强烈社会反响中我们清楚地认识到,法治的种子已蕴藏普通民众的心中,民众对吴英个人的同情实际上是对社会体制和现行法制的不满。我们只有回归法治理念,果断抛弃“刀制”的法制,才能坚决执行法治之路。
[Abstract]:More than 30 years ago, China made a difficult choice on the two completely different paths between the rule of law and the rule of law. In the end, China abandoned the rule of law and chose a country governed by law, which is the basic strategy of governing the country according to law. The construction of a country ruled by law in China has two important characteristics: one is gradual, the process of the rule of law cannot get rid of the constraints of economy, politics, culture and other conditions; the other is to show its obvious Chinese characteristics at the same time. More than 30 years later, the Wu Ying case, which has been extensively discussed by all walks of life, has become a bottleneck in the road of the legal system. The value and significance of case study lies in the fact that a specific case can reflect legal problems of universal significance. The analysis of Wu Ying's case is small, but it is a question of how Wu Ying's fund-raising behavior should be characterized, that is, whether it is an economic crime of illegally absorbing deposits from the public or a crime of fraud of raising funds, or whether it is not a crime at all. It is only an analysis of civil lending relationships and penalties. Wu Ying's case can not find the basis of Wu Ying's behavior from the subjective and objective aspects of the elements of crime. Wu Ying's behavior belongs to the folk loan relationship and should be acquitted. In general, it is the discussion of whether the death penalty is applicable to economic crimes. In the background of the socialist market economy, we can understand that legislators try to release the contradictions in society with severe punishment for the sake of maintaining stability. But at the same time, we should realize soberly that stability is only a sign of harmony, not harmony itself. The crime of economic crime is very serious, but in the final analysis, the source of containing crime lies in the upstream of criminal law, the construction of the rule of law in socialist market, and the perfection of management system of socialist market economy. The court's judgment on Wu Ying violates the concept of rule of law and is the embodiment of the state-based criminal law of state power, which reflects that there is still a big deviation between the theory and practice of China's construction of the rule of law. The construction of the rule of law guided by the thinking of civil rights and criminal law should guarantee human rights and adapt to the interests of the people. From the strong social reaction caused by Wu Ying's case, we clearly realize that the seed of rule of law has been in the hearts of ordinary people, and the people's sympathy for Wu Ying's individual is actually dissatisfaction with the social system and the current legal system. Only when we return to the concept of rule of law and resolutely abandon the legal system of "knife system", can we resolutely carry out the road of rule of law.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3;D920.5

【参考文献】