民间借贷与非法吸收公众存款罪实体与程序界分的研究

发布时间：2018-06-09 14:00

本文选题：非法吸收公众存款 + 民间借贷　；参考：《山东大学》2014年硕士论文

【摘要】：2013年11月12日,中国共产党第十八届中央委员会第三次全体会议通过的《中共中央关于全面深化改革若干重大问题的决定》(下称《决定》),改革力度前所未有,体现了新一届领导集体解决当前我国发展面临的一系列重大问题的决心和魄力。《决定》指出,要完善金融市场体系,扩大金融业对内对外开放,在加强监管前提下,允许具备条件的民间资本依法发起设立中小型银行等金融机构。推进民间金融合法化、透明化已成为政府、企业、群众的共识。近年来,一方面,中小企业融资困难已成为限制其发展的最大瓶颈。与国家金融政策及社会资金压力的背景相关联,中小企业固有的规模和信用水平低、企业抗风险能力弱、可供担保抵押的财产不足等内因,导致其难以获得银行贷款,这就使其对民间资本产生了迫切的需求。民间融资以其启动方式灵活,担保要求不严,备受中小企业青睐。另一方面,由于民间资本持续积累但却游离分散,人们的理财理念增强但投资渠道却不畅通,民间借贷的高利息诱惑之下,往往忽略其投资的风险性而将闲置资金甚至全家积蓄出借出去进入资本市场流通。而现阶段,金融市场体系面临革新,市场监管尚存在漏洞,致使民间借贷市场迅速活跃膨胀的情况下,由民间借贷异化成为以非法吸收公众存款犯罪为代表的非法集资类案件屡见不鲜,个别经济发达地区甚至出现非法集资规模化、危机化的趋势。涉众型民间借贷纠纷案件数量的激增及其实务处理上的困境凸显了相关法律规定的缺失,非法吸收公众存款犯罪行为之所以难以控制,其中一个重要原因就是现有法律法规对合法民间借贷与非法吸收公众存款罪没有明确的界限,理论界争议颇多,各地法院对类似案件处理标准尺度大相径庭。这样一来,一方面,不仅造成司法权威的动摇,亦使意欲进行借贷活动的双方对其各自行为缺乏稳定、明确的预期,阻滞合法民间借贷活动；另一方面,可能助长违法犯者的侥幸心理,以合法借贷为名,行非法集资之实,扰乱国家金融秩序,损害群众财产权利。鉴于以上现状,本文以济南市某区人民法院近期一宗涉众民间借贷纠纷案件的处理过程引出研究的问题,通过对民间借贷与非法吸收公众存款罪之间内涵界定、实体界限及“刑民交叉”的程序界分的分析探讨,以期对今后该类民间借贷纠纷案件的处理提供可借鉴的参考建议。
[Abstract]:On November 12, 2013, the "decision of the CPC Central Committee on several important issues of comprehensively deepening Reform" adopted at the third Plenary session of the 18th Central Committee of the Communist Party of China (hereinafter referred to as "the decision") was unprecedented. This reflects the determination and drive of the new leadership collective to solve a series of major problems facing the current development of our country. [decision >] it is pointed out that it is necessary to improve the financial market system, expand the opening up of the financial industry to the outside world, and, on the premise of strengthening supervision and control, Allowing qualified private capital to initiate the establishment of small and medium-sized banks and other financial institutions. Promoting the legalization of private finance and transparency has become the consensus of the government, enterprises and the masses. In recent years, on the one hand, the financing difficulties of small and medium-sized enterprises have become the biggest bottleneck restricting their development. Associated with the background of national financial policies and social capital pressures, the inherent scale and credit level of SMEs, the weak ability of enterprises to resist risks, and the lack of property available for guarantee and mortgage make it difficult for them to obtain bank loans. This causes its to the folk capital to produce the urgent demand. Private financing with its flexible way of starting, guarantee requirements are not strict, favored by small and medium-sized enterprises. On the other hand, because private capital continues to accumulate but is scattered, people's financial management concept is enhanced but investment channels are not smooth, and the high interest rate of private loans is tempted by the temptation. They often ignore the risk of their investments and lend out idle funds or even family savings into the capital market. At this stage, the financial market system is facing innovation and there are still loopholes in market supervision, which has led to the rapid expansion of the private lending market. The alienation of private borrowing has become a common case of illegal collection of funds represented by the crime of illegally absorbing public deposits. In some economically developed areas, there is even a trend of illegal fund-raising on a large scale and crisis. The rapid increase in the number of cases of stakeholder type private loan disputes and their difficulties in practical handling have highlighted the lack of relevant laws and regulations, and the crime of illegally absorbing deposits from the public is difficult to control. One of the important reasons is that the existing laws and regulations do not have a clear line between the legal private lending and the crime of illegally absorbing public deposits, and there are many disputes in the theoretical circle, and the standards for handling similar cases vary widely in various courts. In this way, on the one hand, this will not only destabilize the judicial authority, but also make both parties wishing to engage in lending activities lack stability and express expectations for their respective actions, thus blocking legitimate private lending activities; on the other hand, It may encourage the fluke mentality of those who violate the law, in the name of lawful borrowing, to raise funds illegally, to disrupt the national financial order, and to damage the property rights of the masses. In view of the above present situation, Based on the process of dealing with a recent case of nongovernmental loan dispute in a district people's court of Jinan City, this paper defines the connotation between folk loan and the crime of illegally absorbing deposits from the public. This paper analyzes the substantive boundary and the procedural division of "criminal and civilian crossing" in order to provide reference suggestions for the handling of this kind of folk loan dispute cases in the future.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3

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