非法吸收公众存款罪所涉合同效力问题研究

发布时间：2018-04-25 22:35

本文选题：合同效力 + 非法吸收公众存款罪　；参考：《浙江大学》2014年硕士论文

【摘要】：近年来,民间借贷涉嫌非法吸收公众存款被公安机关立案侦查的案件频发,且涉案金额大、涉及群众范围广,这一系列案件应当如何处理成了司法实践中相当棘手又亟待解决的问题。债务人在构成非法吸收公众存款罪后,其与债权人签订的借款合同效力认定问题成为目前司法审判实务中的一个难点。在目前的审判实务和学说中,认为合同无效或是合同有效的两种观点兼而有之,本文试图从民间借贷和非法吸收公众存款罪的刑民交叉部分入手,从保护债权人的角度,重点探讨涉及的借款合同和相关的担保合同效力。通过对审判现状和学界观点的探讨,区分不同处理模式的内涵,同时根据最高院公报案例所展现的意义,来思考何种判断更具有合理性。对作为主合同的借款合同而言,首先,评价犯罪行为和合同行为的模式存在较大差别,刑事犯罪行为和民事行为是分别由刑法和民法两个不同的法律体系加以调整,不可轻易混为一谈；其次,是否对效力性强制性规范构成违反关键在于对相关条文的性质判断问题,探讨民间借贷是否违反刑法,本质上其实是对于该行为是否违反商业银行法、从事相关业务的探究；另外,贸然将借款合同认定为无效,在当事人利益以及交易安全的保护方面,或许会带来更为不利的后果,对于相关的担保合同效力也是一样,因此,民间借贷涉嫌或构成非法吸收公众存款罪,合同一方当事人可能被追究刑事责任的,并不当然影响民间借贷以及相对应的担保合同的效力。在此基础上,本文也对现有的非法吸收公众存款罪涉及合同效力的审判模式进行反思,盲目进行“先刑后民”的坚持,会给借贷合同的效力认定带来较多问题,应合理根据案件类型区别审理。
[Abstract]:In recent years, cases involving private loans suspected of illegally absorbing deposits from the public are frequently recorded and investigated by the public security organs, and the amount involved is large and involves a wide range of people. How to deal with this series of cases has become a thorny and urgent problem in judicial practice. After the debtor constitutes the crime of illegally absorbing public deposits, the validity of the loan contract signed between the debtor and the creditor has become a difficult point in the judicial practice at present. In the current trial practice and doctrine, there are two points of view that the contract is invalid or valid. This paper tries to start with the criminal and civil intersection part of the crime of private borrowing and illegally absorbing public deposits, and from the angle of protecting creditors. This paper mainly discusses the validity of the loan contract and the relevant guarantee contract. Through the discussion of the current situation of the trial and the viewpoints of the academic circles, this paper distinguishes the connotations of different processing modes, and at the same time, according to the significance of the case of the Supreme Court Bulletin, considers which judgment is more reasonable. For the loan contract as the main contract, first of all, there are great differences in the mode of evaluating the criminal act and the contract behavior. The criminal act and the civil act are respectively adjusted by the two different legal systems of criminal law and civil law. Second, whether the validity of peremptory norms constitutes a violation of the key lies in the relevant provisions of the nature of the judgment, to explore whether private lending is in violation of the criminal law, In essence, it is an inquiry into whether the act violates the Commercial Bank Law and engages in related business. In addition, it hastily regards the loan contract as null and void, in terms of the protection of the interests of the parties and the security of the transaction. It may have even more adverse consequences, and the same applies to the effectiveness of the relevant security contract. Therefore, if a private loan is suspected of or constitutes an illegal crime of taking deposits from the public, a party to the contract may be held criminally liable. It does not, of course, affect the effectiveness of private lending and the corresponding guarantee contracts. On this basis, this paper also reflects on the existing trial mode of illegal public deposit crime involving the validity of the contract. Blindly carrying out the insistence of "first punishment before the people" will bring more problems to the validity of the loan contract. Should be reasonable according to the type of case trial.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3;D923.6

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