论民间借贷案件中的刑民并行原则
发布时间：2019-03-18 16:43
【摘要】：近年来,大量的民间闲置资本被转移到民间借贷上来,民间借贷的规模不断壮大,其所引发的纠纷也层出不穷,这些纠纷中既有刑事类案件,也有民事类案件,甚至出现二者的交叉。刑民交叉案件的复杂性也引起了学界的关注,它涉及到刑事案件和民事案件等多方的利益,各方利益交织在一起也决定了它需要我们慎重地对待。在处理刑民交叉案件时关键是找到一个合理解决问题的切入点,寻求各方利益的平衡,才能从实质上创造公正的法治环境,从而适应我国民主法治的进程。本文以民间借贷所涉及的担保案例作为切入点,通过把握刑民交叉案件背后所存在的共通点,先从法理上分析该问题所蕴含的内在价值指向,再分析法律条文的应有之义,从而得出刑民并行原则,同时指出存在的某些例外情况。这篇文章从案例比较入手,所引用的案例为民间借贷所涉的刑民交叉案件,其包含的案情大致如下,在民间借贷中的借款人因涉及的非法吸收公众存款罪而依法承担责任,此时司法机关虽然可以依据刑法第176条之规定追究行为人的刑事责任,但单凭该条规定未能承担起定纷止争的职责。在追究借款人的刑事责任外,非法吸收存款罪所涉及的债权人往往通过民事诉讼程序追究债务人和担保人的债务责任,希望以此来维护自身的合法权益。由此又造成了新的问题,即刑事诉讼程序与民事诉讼程序的交叉后,应当怎么处理程序上的先后顺序问题。本文拟在四个层次进行分析,首先分析刑民交叉案件存在的问题,接着从法律理论出发,这其中包含法理和法律条文两个层次,分析刑民并行作为基本原则的依据,最后从理论回归到实践。第一章“刑民交叉案件处理原则的理论和实践分歧”分为三节。第一节列举了的案例中债权人提出民事诉讼追究借款人的还款责任以及担保人的担保责任,而此时借款人却因为涉及非法吸收公众存款罪被追责,因为涉及刑事犯罪,法院以此驳回了债权人的请求。第二节列举的案例的类型相同,但法院却没有认可刑事程序对于民事程序的影响,反而认可了民事责任。第三节则是对上两节案例的剖析,进而提出笔者的观点,即处理该类刑民交叉案件的基本原则应当是刑民并行,但不排除特殊情况。第二章“刑民并行的法理基础”,该章是从决定刑民先后顺序的内在法理精神角度出发,剖析刑民并行的合理性。本章分为两节,第一节分析法学理论,主要包括我国法律体系的构成,即我国刑事法律规范和民事法律规范在结构上存在何种关系。第二节是从刑民交叉案件所涉及的法益指向角度分析,包括公权与私权、公正与效率、利益的平衡等概念的角度寻求刑民并行的科学性、合理性依据。第三章“刑民并行的法律依据”,该章节包含三个小节,首先分析刑民交叉案件处理顺序相关规定的沿革,找出立法者的原意；接着分析域外国家的做法,找出借鉴的意义；最后,总结前文的分析,梳理出影响刑民交叉案件处理顺序的因素。第四章“刑民并行作为处理原则的实践回归”,本章是将理论分析的结果应用到实践当中,解决前文案例所出现的分歧。结合实践,刑民并行是基本原则,刑民有先后则是例外。
[Abstract]:In recent years, a large number of civil idle capital has been transferred to the private lending, and the scale of the folk lending is growing, and the disputes arising from them are emerging. There are both criminal and civil cases in these disputes, and even the intersection of the two. The complexity of the cross-case of the criminal is also a concern of the academic circle, which involves the interests of many parties, such as the criminal case and the civil case, and the interests of the parties are interweaved together, and it needs us to be treated with caution. In dealing with the cross-case of the people, the key is to find a reasonable problem-solving point, and to seek the balance of the interests of the parties in order to create a just and just environment of the rule of law in essence, so as to adapt to the process of the democratic rule of law in our country. This paper, as an entry point, takes the guarantee case involved in the folk loan as the entry point, and analyzes the inherent value of the problem from the legal theory, and then analyzes the legal provisions, so as to obtain the parallel principle of the people. At the same time, it was noted that certain exceptions were present. This article is based on the case comparison, and the case cited is the cross-case of the people involved in the folk loan. The case is as follows: the borrower in the private loan is held liable according to law for the illegal absorption of the public deposit, In this case, although the judicial organ may hold the criminal responsibility of the actor in accordance with the provisions of Article 176 of the Criminal Law, the judicial organ fails to assume the responsibility of initiating the dispute on the basis of the provisions of this article. In addition to the criminal liability of the borrower, the creditors involved in the crime of illegally absorbing the deposit often hold the debts of the debtor and the guarantor through the civil procedure, so as to safeguard the legitimate rights and interests of the debtor. As a result, there is a new problem, that is, after the intersection of the criminal procedure and the civil procedure, how to deal with the sequence of the procedure. This paper is to analyze the four levels, first analyze the problems existing in the cross-case of the people, and then, from the theory of law, this includes two levels of law and law, the analysis of the basis of the parallel as the basic principle, and finally from the theory to the practice. Chapter I "The Theory and Practice of the Principle of Dealing with the Cross-case of the People's Republic of China" is divided into three sections. In the case of the first section, the creditor filed a civil action to hold the borrower's repayment responsibility and the guarantee liability of the guarantor, and at that time the borrower was in charge of the crime of illegal absorption of the public deposit, which dismissed the creditor's request as a result of the criminal offence. The types of cases cited in section II are the same, but the Court does not recognize the impact of the criminal procedure on the civil procedure, but rather the civil liability. The third section is the analysis of the last two cases, and then the author's point of view, that is, the basic principle of dealing with the cross-case of the type of punishment should be the parallel of the people, but the special situation is not excluded. The second part of the "The Legal Basis of the Parallelism of the People in China" is to analyze the rationality of the parallelism of the people from the angle of the internal legal spirit of the order of the people. This chapter is divided into two sections, and the first section analyses the theory of law, mainly including the constitution of our country's legal system, that is, what kind of relationship is in the structure of the criminal law and civil law of our country. The second section is the analysis of the legal interest points involved in the cross-case of the people, including the scientific and reasonable basis of the parallel nature of the punishment people from the perspective of the concept of public right and justice, justice and efficiency, and the balance of interests. In chapter three, the "The Legal Basis of the Parallelism of the People", which contains three sections, first analyzes the evolution of the relevant provisions of the processing order of the cross-case of the criminal and finds out the original intention of the legislators, and then analyzes the practice of the extraterritorial countries and finds the significance of the reference; and finally, the above analysis is summarized. The factors that affect the order of the processing of the cross-case of the condemned people are sorted out. Chapter four "The practice regression of the principle of the processing of the people in parallel as the principle of treatment", this chapter is to apply the result of the theory analysis to the practice, to solve the differences that appear in the above cases. In combination with the practice, the parallel is the basic principle, and the punishment of the people is the exception.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925
[Abstract]:In recent years, a large number of civil idle capital has been transferred to the private lending, and the scale of the folk lending is growing, and the disputes arising from them are emerging. There are both criminal and civil cases in these disputes, and even the intersection of the two. The complexity of the cross-case of the criminal is also a concern of the academic circle, which involves the interests of many parties, such as the criminal case and the civil case, and the interests of the parties are interweaved together, and it needs us to be treated with caution. In dealing with the cross-case of the people, the key is to find a reasonable problem-solving point, and to seek the balance of the interests of the parties in order to create a just and just environment of the rule of law in essence, so as to adapt to the process of the democratic rule of law in our country. This paper, as an entry point, takes the guarantee case involved in the folk loan as the entry point, and analyzes the inherent value of the problem from the legal theory, and then analyzes the legal provisions, so as to obtain the parallel principle of the people. At the same time, it was noted that certain exceptions were present. This article is based on the case comparison, and the case cited is the cross-case of the people involved in the folk loan. The case is as follows: the borrower in the private loan is held liable according to law for the illegal absorption of the public deposit, In this case, although the judicial organ may hold the criminal responsibility of the actor in accordance with the provisions of Article 176 of the Criminal Law, the judicial organ fails to assume the responsibility of initiating the dispute on the basis of the provisions of this article. In addition to the criminal liability of the borrower, the creditors involved in the crime of illegally absorbing the deposit often hold the debts of the debtor and the guarantor through the civil procedure, so as to safeguard the legitimate rights and interests of the debtor. As a result, there is a new problem, that is, after the intersection of the criminal procedure and the civil procedure, how to deal with the sequence of the procedure. This paper is to analyze the four levels, first analyze the problems existing in the cross-case of the people, and then, from the theory of law, this includes two levels of law and law, the analysis of the basis of the parallel as the basic principle, and finally from the theory to the practice. Chapter I "The Theory and Practice of the Principle of Dealing with the Cross-case of the People's Republic of China" is divided into three sections. In the case of the first section, the creditor filed a civil action to hold the borrower's repayment responsibility and the guarantee liability of the guarantor, and at that time the borrower was in charge of the crime of illegal absorption of the public deposit, which dismissed the creditor's request as a result of the criminal offence. The types of cases cited in section II are the same, but the Court does not recognize the impact of the criminal procedure on the civil procedure, but rather the civil liability. The third section is the analysis of the last two cases, and then the author's point of view, that is, the basic principle of dealing with the cross-case of the type of punishment should be the parallel of the people, but the special situation is not excluded. The second part of the "The Legal Basis of the Parallelism of the People in China" is to analyze the rationality of the parallelism of the people from the angle of the internal legal spirit of the order of the people. This chapter is divided into two sections, and the first section analyses the theory of law, mainly including the constitution of our country's legal system, that is, what kind of relationship is in the structure of the criminal law and civil law of our country. The second section is the analysis of the legal interest points involved in the cross-case of the people, including the scientific and reasonable basis of the parallel nature of the punishment people from the perspective of the concept of public right and justice, justice and efficiency, and the balance of interests. In chapter three, the "The Legal Basis of the Parallelism of the People", which contains three sections, first analyzes the evolution of the relevant provisions of the processing order of the cross-case of the criminal and finds out the original intention of the legislators, and then analyzes the practice of the extraterritorial countries and finds the significance of the reference; and finally, the above analysis is summarized. The factors that affect the order of the processing of the cross-case of the condemned people are sorted out. Chapter four "The practice regression of the principle of the processing of the people in parallel as the principle of treatment", this chapter is to apply the result of the theory analysis to the practice, to solve the differences that appear in the above cases. In combination with the practice, the parallel is the basic principle, and the punishment of the people is the exception.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925
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