高利转贷罪问题研究
发布时间：2018-07-29 15:51
【摘要】：由于我国金融业发展变化迅速,制度管理、经营方式等出现了多样化和综合性的发展态势,新情况、新问题不断出现,自刑法增设高利转贷罪来,围绕该罪在犯罪构成方面的争议一直存在,目前,在司法实践中,高利转贷案件时有发生,但对这一罪的理论探讨很少。高利转贷罪中“高利”的认定问题,高利转贷罪中“套取信贷资金”的认定问题,行为人转贷牟利的时间对高利转贷罪的构成是否有影响,利用自有资金进行高利放贷的性质的认定问题,等等。因此,有必要对对高利转贷罪的相关问题进行深入详细的分析。 本文除引言和结语外,分为三个部分： 第一部分,主要讨论了高利转贷罪的法律概念,客体、客观方面、主观方面等构成要件和高利转贷罪的犯罪形态问题。在高利转贷罪的客观方面认定上,“违法所得”,是指行为人高利转贷所得的收益与其支付给银行利息之间的差额；既包括现实的违法所得,也包括期待的违法所得,对于期待的违法所得的计算,应当以借贷双方的实际协议为准。我国信贷管理制度包括正常合法取得贷款和按照约定使用贷款的行为。因此,高利转贷罪中的套取金融机构信贷资金中的“套取”行为,是指行为人违反了合法取得贷款或违反了依约定使用贷款,只要具备二之一,即构成“套取”。判断“套取”的核心在于行为人对贷款的实际用途是否符合其贷款时所约定的使用目的,只要不符合约定的使用目的,即属于“套取”行为。对高利转贷罪中“高利”的判断,应从文义解释的角度出发,只要行为人转贷给他人的利率高于其本人从金融信贷机构“套取”贷款的利率,有牟利的空间,即可以认定为“高利”。在高利转贷罪的主观方面认定上,高利转贷罪在主观认识上,要求是故意,且属于直接故意,行为人的过失或间接故意均不构成本罪。高利转贷罪中的故意应包括故意“套取信贷资金”和故意“高利转贷”两部分。行为人的终极目的是牟取利益,行为人在主观上必须要有以转贷牟利为目的。在高利转贷罪的客体认定上,由于我国实行金融业的特许和严格的监管制度,高利转贷罪中存在“套取金融机构的信贷资金”、“高利转贷给他人”等多个行为,且以牟利为目的,具体侵犯的是国家贷款发放、专用和国家利率管理制度,因此,高利转贷罪的客体应为我国的信贷资金管理制度,高利转贷罪侵害的客体是我国信贷资金管理制度。 第二部分主要讨论高利转贷罪中疑难认定问题。在企业将自有资金高利贷款给他人,而向银行贷款用于自身企业经营时,出现了企业一边贷款,边向他人转贷,但向他人转贷的资金不是向银行的贷款的信贷资金,此种行为不能被认定为高利转贷罪,这是罪刑法定原则的基本要求,也是刑法谦抑性的表现。行为人在向金融机构贷款中,存在向金融机构贷款过多的情形,超出了项目的使用数额,贷款存在一定的余额,行为人将此余额部分高利转贷给他人,行为人在申请贷款时对项目所需要使用的资金数额比较清楚,其在申请贷款时故意向金融机构多申请贷款,而又将该多出的余额高利转贷给他人,以牟取利益,则对于该余额部分,行为人明显属于“套取金融机构的信贷资金”,由于其实施了“高利转贷给他人”的行为,且以牟取利益为目的,则明显符合高利转贷罪的构成要件,应以高利转贷罪论处。若行为人按照项目所需要的资金向金融机构贷款,但后来由于市场变化或项目调整等原因,导致资金出现多余,行为人将该部分余额高利转贷给他人,以牟取利益。由于行为人是根据项目需要向金融机构申请贷款的,不存在“套取金融机构的信贷资金”的行为,即我国信贷资金的管理秩序未到破坏,行为人当时也不存在以牟利为目的,故不成立高利转贷罪。行为人从银行取得贷款,即获利了对该笔资金的合法使用权,即使该贷款到期,其没有按时偿还贷款,依法应对银行承担违约责任,属于民事责任的一种,这并不足以构成高利转贷罪中的“套取金融机构的信贷资金”的行为。其次,行为人将获得的贷款转贷给他人,这属于行为人对自己自有资金的使用,属于典型的民间借贷行为,并未侵害国家对信贷资金的金融管理秩序,因此,不构成高利转贷罪。从高利转贷罪的规定来看,存在“套取金融机构的信贷资金”和“高利转贷给他人”两种行为,且似乎是明确了“套取行为”在前,“转贷行为”在后的先后顺序,高利转借罪的法条规定仅是表明这两种行为间的逻辑关系,即行为人通过“套取金融机构的信贷资金”,以用来“高利转贷给他人”,并非强调时间上的先后顺序。因此,不论“套取金融机构的信贷资金”发生在前,还是“高利转贷给他人”发生在前,均不影响高利转贷罪的认定。好处费的性质直接决定了构成何种犯罪,如果该好处费是仅给了单位内部的少数帮忙贷款的领导或决策者,则帮忙申请贷款的单位没有获得利益,即没有牟利,只是领导滥用职权为他人牟利,其所得的好处费是一种贿赂,则该帮忙贷款的领导可能构成受贿罪或非国家工作人员受贿罪,企业不会构成高利转贷罪。但若企业在帮需要融资的企业进行贷款中,企业收到了好处费,则企业在行为上实施了“套取金融机构的信贷资金”和“高利转贷给他人”的行为,且以牟利为目的,侵害了我国信贷资金的管理秩序,符合高利转贷罪的构成要件,应认定为高利转贷罪。如果行为人是以自己的名义,申请贷款后再转借给他人,从中收到好处费或服务费用的,则其明显存在“套取金融机构的信贷资金”和“高利转贷给他人”的行为,且好处费或服务费即为牟取的利益,也侵害了高利转贷罪的客体,构成高利转贷罪。双方当事人之间存在真实的交易关系,且由于行为人支付“预付款”,相对而言,其在进行交易时,会享受到相应的折扣或优惠,因此,对方当事人给付货物的价值要远超过行为人所付的“预付款”也是交易的一种体现,其次,由于市场变化莫测,商品的价值也在不断变化,难以确切衡量商品的价值远超过行为人所付的“预付款”；再次,行为人进行商业交易,获利是其经商的追求目标,是正当的追求,且没有侵害高利转贷罪的法益。因此,这种情形不符合高利转贷罪的构成要件,对这种情形不宜认定为犯罪。金融机构的工作人员同时还构成了挪用公款罪或挪用资金罪,即出现了想象竞合犯。因此,对于这种情形下,金融机构工作人员和行为人的定性较为复杂,应当予以区别对待。 第三部分主要讨论高利转贷罪与其他金融犯罪的区分问题。高利转贷罪与贷款诈骗罪,同属于贷款类的犯罪,均是危害金融管理秩序的犯罪行为,二者存在紧密的联系。高利转贷罪中的套取金融机构信贷资金中的“套取”行为,是指行为人违反了合法取得贷款或违反了依约定使用贷款,只要具备二之一,即构成“套取”。“诈骗”主要是以非法占有为目的,而采取的虚构事实等方法,使相对人陷入错误认识,从而实现非法占有,实质是一种“骗取”行为。因此,贷款诈骗罪中的“诈骗”和高利转贷罪中的“套取”区分十分明显：“诈骗”是以非法占有为目的的,“套取”不以非法占有为目的,行为人有归还的意思,仅是对贷款的用途作虚假申报或不实陈述；贷款诈骗罪的“欺骗”则不一定是对贷款的用途进行欺骗,而是行为人为了隐瞒自己对贷款的偿还能力,通过编造引进资金和项目的前景、提供的虚假担保等形式获取贷款。此外,高利转贷罪还包括另一行为——“高利转贷给他人”,而贷款诈骗罪却不包含这一行为。高利转贷罪与挪用资金罪,二者均是故意犯罪,均是数额犯,都是针对资金的犯罪行为,在犯罪客观方面,均存在一定的“欺骗”、“隐瞒”行为,在犯罪主观方面都是直接故意,均能成立犯罪的预备、中止、未遂。高利转贷罪的行为可能会和挪用资金罪的行为发生重叠。金融机构的工作人员挪用本单位的资金,高利转借给他人使用,其实是本单位的工作人员挪用单位资金后,再借给他人使用,不存在套取信贷资金的问题,不构成高利转贷罪。该金融机构的工作人员只能构成挪用资金罪或挪用公款罪。高利转贷罪和骗取贷款罪存在一些共同点,如二者有相同的犯罪主体；在客体上都侵犯了信贷资金的使用权。在司法实践中,还存在两罪竞合的问题,法条竞合关系出现最多的是特别法与普通法、重法与轻法的竞合。我国法律规定处理法条竞合的一般原则是特别法优于普通法,重法优于轻法。从法条来看,自然人为主体的骗取贷款罪与高利转贷罪所处的刑罚轻重程度大体相等,而单位犯罪中对相关自然人的处罚力度前者比后者重。从重法优于轻法的处理原则出发似乎定骗取贷款罪较为合理。但从两罪的犯罪构成来看,竞合的情况下高利转贷罪被骗取贷款罪所包容,此时二者之间形成普通法和特别法的关系,可将高利转贷罪作为骗取贷款罪中的特殊情形,依特别法优先于普通法的原则应当定高利转贷罪。于是出现了两个处理原则适用时的取舍问题。笔者认为,此种情况下,采取折中的办法,从实务操作的角度出发可以根据不同情况适用不同的原则处理。具体来讲,在犯罪主体是单位的情况下依照重法优于轻法的原则,以骗取贷款罪定罪处罚；犯罪主体是自然人的情况下依照特别法优于普通法的原则,以高利转贷罪定罪处罚。
[Abstract]:Because of the rapid development and change of the financial industry in China, the system management, the operation mode and so on, there are various and comprehensive development trends, the new situation, the new problems are constantly emerging, the crime of high interest transfer has been added to the criminal law, and the controversy surrounding this crime has been existing in the constitution of the crime. There are few theoretical discussions on this crime. The identification of "high profit" in the crime of transferring loan to high profit, the identification of "collecting credit funds" in the crime of high interest transfer, whether the time of the person to make a profit by the agent has an influence on the constitution of the high interest loan, and the identification of the nature of the high interest loan with its own funds, and so on. The related problems of the crime of usurious loan transfer are analyzed in detail.
In addition to the introduction and conclusion, this article is divided into three parts:
The first part mainly discusses the legal concept, the object, the objective aspect, the subjective aspect, the subjective aspect and the crime form of the high interest transfer crime. In the objective aspect of the crime of high interest transfer, the "illegal income" refers to the difference between the profit of the high profit transfer and the interest paid to the bank. Including the actual illegal income, including the expected illegal income, the calculation of the expected illegal income should be based on the actual agreement between the borrowers and the borrowers. The credit management system of our country includes the normal legal acquisition of loans and the act of using the loan in accordance with the agreement. "Arbitrage" means that the actor violates the legitimate acquisition of a loan or violates the use of a loan according to the agreement. As long as it has one of two, it constitutes "arbitrage". The core of the "arbitrage" is to judge whether the actual use of the loan is in accordance with the intended use of the loan when the actor's actual use of the loan is in conformity with the loan, as long as it does not conform to the intended use purpose, that is, The judgment of "high profit" in the crime of transferring the loan of high interest should be judged from the angle of interpretation of the article. As long as the interest rate of the person who is transferred to others is higher than the interest rate of "arbitrage" from the financial credit institution, there is a space for profit making, that is, it can be regarded as "high profit". On the subjective understanding, the crime of transferring loans is intentional, and it belongs to the direct intention. The negligent or indirect intention of the actor does not constitute the crime. The intentional of the crime of transferring the loan of the high interest should include two parts: intentional "taking credit funds" and intentional "high interest transfer". The ultimate purpose of the actor is to gain the interests, and the actor must be subject to the subjective. For the purpose of making a profit for the transfer of loans, in the case of the object identification of the crime of transferring the loan of high interest, because of the Charter and strict regulatory system of the financial industry in our country, there are many acts such as "taking the credit funds of the financial institutions" and "transferring the loan to others" in the crime of high interest transfer, and in order to make profit for the eye, the specific infringement is the state loan, special and country. The family interest rate management system, therefore, the object of the high interest transfer crime should be the credit fund management system of our country, the object of the high interest transfer crime is our credit fund management system.
The second part mainly discusses the difficult cognizance problem in the crime of transferring loan to high profit. In the enterprise, when the enterprise makes a high profit loan of its own funds to others, while the bank loan is used for the business of its own enterprise, it appears the loan of the enterprise on one side and transfers the loan to others, but the funds transferred to others are not the credit funds to the bank. This kind of behavior cannot be identified as The crime of high interest transfer loan is the basic requirement of the principle of the legality of crime and punishment. It is also the performance of the modesty of the criminal law. In the loan to the financial institutions, the actor has too much loan to the financial institution, which exceeds the amount of the use of the project, the loan has a certain balance, the perpetrator transfers the balance part of the loan to others, and the actor is applying for a loan. The amount of funds needed for the project is relatively clear. When applying for a loan, it intends to apply for a loan to a financial institution and transfer the excess balance to others in order to gain interest. For the balance part, the actor is obviously "a credit fund for the financial institution". The act of giving to others, and in order to gain interest, is obviously in accordance with the constitutive requirements of the crime of transferring loan to high interest. It should be dealt with in the case of the crime of high interest transfer. If the perpetrator loan to the financial institution according to the funds needed by the project, but later due to the change of the market or the adjustment of the project, the fund is superfluous and the perpetrator will make the part of the balance high. As the actor applies for a loan to a financial institution according to the needs of the project, there is no act of "collecting credit funds from the financial institutions", that is, the management order of the credit funds in our country has not been destroyed, and the perpetrator does not have the purpose of making profit for the purpose of making profit. So the actor from the bank is from the bank. To obtain a loan, that is to profit the legitimate right to use the fund. Even if the loan expires, it does not pay the loan on time and is responsible for the bank to undertake the liability for breach of contract in accordance with the law. It is not enough to constitute the act of "taking credit funds for the financial institutions" in the crime of high interest transfer. Secondly, the loan will be obtained by the perpetrator. To transfer loans to others, which belongs to the use of their own funds, belongs to the typical private lending behavior, and does not infringe on the state's financial management order for credit funds. Therefore, it does not constitute a high interest transfer crime. From the provisions of the crime of transferring loans from high interest, there is a "credit fund for financial institutions" and "a high profit transfer to others" two. It seems to be a kind of behavior, which seems to be clear about the sequence of "the act of arbitrage" before, and the order of the "transfer behavior" in the post. The law clause of the crime of high interest loan is only a logical relation between the two acts, that is, the actor passes "the credit fund of the financial institution", which is used for "high profit to lend to others", not to emphasize the time successively. Therefore, it does not affect the cognizance of the crime of high interest transfer before or before the occurrence of the credit funds of the financial institutions, or the "high interest transfer to others". The nature of the benefits fee directly determines what crime is constituted, if the benefit is only given to the leadership or decision maker of a few helping loans within the unit, The unit that is busy applying for a loan does not gain profit, that is, no profit is made, only the leader will abuse his power to profit for others. The benefit fee of the income is a bribe, and the leadership of the loan may constitute a crime of bribery or non state staff bribery, and the enterprise will not constitute a crime of high interest transfer. In the loan, the enterprise received the benefit fee, and the enterprise carried out the behavior of "taking the credit funds of the financial institutions" and "transferring the loan to others" in the behavior. In order to make profit, it infringed the management order of the credit funds of our country and conformed to the constitutive requirements of the crime of high interest transfer. In the name of one's own, after applying for a loan to another person and receiving the benefits or service fees from it, it obviously has the behavior of "taking the credit funds of the financial institutions" and "transferring the loan to others", and the benefit fee or service fee is for the profit, and it also infringes the object of the crime of high interest transfer, and constitutes the crime of high interest transfer. There is a real transaction relationship between people, and because the perpetrator pays "prepayment", relative, it will enjoy the corresponding discount or discount when conducting the transaction. Therefore, the value of the party to pay the goods is far more than the "prepayment" paid by the perpetrator, which is also a manifestation of the transaction, secondly, because the market is unpredictable. The value of the commodity is constantly changing, and it is difficult to accurately measure the value of the commodity far more than the "prepayment" paid by the actor. Again, the perpetrator carries on the commercial transaction. The profit is the pursuit of its business, the legitimate pursuit, and the legal benefit of the crime of high interest transfer. Therefore, this situation does not conform to the constitutive requirements of the crime of high interest transfer. In this case, the staff of financial institutions also constitute the crime of misappropriating public funds or misappropriation of funds, that is, the imaginative concurrence committed. Therefore, in this case, the staff and the actor of the financial institutions are more complex and should be treated differently.
The third part mainly discusses the distinction between the crime of high interest transfer and other financial crimes. The crime of high interest transfer and the crime of loan fraud, which belong to the type of loan, are all crimes that harm the order of financial management, and there is a close connection between the two. For a person who violates the legitimate acquisition of a loan or violates the use of a loan according to the agreement, as long as there is one of two, it constitutes "arbitrage". The "fraud" is mainly aimed at illegal possession, and the fictitious facts are taken to make the relative people fall into the wrong understanding, thus realizing the illegal occupation, and the essence is a "fraud" act. Therefore, loan fraud is fraudulent. The distinction between "fraud" in the crime of fraud and "arbitrage" in the crime of transferring loan to high interest is very obvious: "fraud" is aimed at illegal possession, "arbitrage" is not the purpose of illegal possession, and the actor has the meaning of return. It is only a false declaration or false statement of the use of the loan; the "deception" of the crime of loan fraud is not necessarily the right one. The use of loans is deceiving, but the perpetrator in order to hide their ability to repay the loan, through the introduction of the prospect of the introduction of funds and projects, the form of false guarantee and other forms to obtain loans. In addition, the high interest transfer crime also includes another act, "high interest transfer to others", and the crime of fraud does not contain this act. The crime of transferring loan and misappropriation of funds, all of the two are intentional crimes, all are the amount offense, all are crimes against funds, in the objective aspect of the crime, there are certain "deceit", "concealment" behavior, the subjective aspects of the crime are direct intentional, all can set up a crime prepreparation, suspension, attempted crime and misappropriation The behavior of the crime of funds overlaps. The staff of the financial institution misappropriated the capital of the unit, and the high profit was borrowed to other people. In fact, after the staff of the unit misappropriated the unit funds and then lent the use of other people, it did not exist the problem of collecting credit funds and did not constitute the crime of high interest transfer. The staff of the financial institution can only be misappropriated. There are some common points in the crime of funds or misappropriation of public funds. There are some common points between the crime of transferring the loan of high interest and the crime of cheating on the loan. For example, the two parties have the same subject of the crime; the right to use the credit funds is infringed on the object. In the judicial practice, there are also the problems of the concurrence of two crimes, and the most common law competition relations are the special law and the ordinary law, the competition between the law and the light law. China's law stipulates that the general principle of concurrence in dealing with law is that special law is superior to ordinary law, and that the law is superior to light law. From the point of view of law, the degree of punishment in the crime of taking loans from natural persons for the main body is roughly equal to the degree of punishment in the crime of high interest transfer, while the former is heavier than the latter in the unit crime. According to the principle of dealing with the light law, it seems that the crime of obtaining a loan is more reasonable. But from the constitution of the two crimes, in the case of concurrence, the crime of high interest transfer is covered by the crime of cheating and borrowing, and the relationship between the ordinary law and the special law is formed between the two parties, and the crime of transferring the loan of high interest can be taken as a special case of the crime of fraud, and the priority of the special law is to give priority to the general law. In this case, the author holds that, in this case, a compromise can be taken to deal with the different principles in accordance with the different circumstances from the perspective of practical operation. Specifically, under the circumstances of the criminal subject is the unit, it is superior to the heavy law. The principle of light law is to convict the crime of fraud and punishment. The subject of the crime is the principle of the special law, which is superior to the ordinary law in the case of the natural person, and is convicted and punished with the crime of transferring the loan with high interest.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
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本文编号：2153174
[Abstract]:Because of the rapid development and change of the financial industry in China, the system management, the operation mode and so on, there are various and comprehensive development trends, the new situation, the new problems are constantly emerging, the crime of high interest transfer has been added to the criminal law, and the controversy surrounding this crime has been existing in the constitution of the crime. There are few theoretical discussions on this crime. The identification of "high profit" in the crime of transferring loan to high profit, the identification of "collecting credit funds" in the crime of high interest transfer, whether the time of the person to make a profit by the agent has an influence on the constitution of the high interest loan, and the identification of the nature of the high interest loan with its own funds, and so on. The related problems of the crime of usurious loan transfer are analyzed in detail.
In addition to the introduction and conclusion, this article is divided into three parts:
The first part mainly discusses the legal concept, the object, the objective aspect, the subjective aspect, the subjective aspect and the crime form of the high interest transfer crime. In the objective aspect of the crime of high interest transfer, the "illegal income" refers to the difference between the profit of the high profit transfer and the interest paid to the bank. Including the actual illegal income, including the expected illegal income, the calculation of the expected illegal income should be based on the actual agreement between the borrowers and the borrowers. The credit management system of our country includes the normal legal acquisition of loans and the act of using the loan in accordance with the agreement. "Arbitrage" means that the actor violates the legitimate acquisition of a loan or violates the use of a loan according to the agreement. As long as it has one of two, it constitutes "arbitrage". The core of the "arbitrage" is to judge whether the actual use of the loan is in accordance with the intended use of the loan when the actor's actual use of the loan is in conformity with the loan, as long as it does not conform to the intended use purpose, that is, The judgment of "high profit" in the crime of transferring the loan of high interest should be judged from the angle of interpretation of the article. As long as the interest rate of the person who is transferred to others is higher than the interest rate of "arbitrage" from the financial credit institution, there is a space for profit making, that is, it can be regarded as "high profit". On the subjective understanding, the crime of transferring loans is intentional, and it belongs to the direct intention. The negligent or indirect intention of the actor does not constitute the crime. The intentional of the crime of transferring the loan of the high interest should include two parts: intentional "taking credit funds" and intentional "high interest transfer". The ultimate purpose of the actor is to gain the interests, and the actor must be subject to the subjective. For the purpose of making a profit for the transfer of loans, in the case of the object identification of the crime of transferring the loan of high interest, because of the Charter and strict regulatory system of the financial industry in our country, there are many acts such as "taking the credit funds of the financial institutions" and "transferring the loan to others" in the crime of high interest transfer, and in order to make profit for the eye, the specific infringement is the state loan, special and country. The family interest rate management system, therefore, the object of the high interest transfer crime should be the credit fund management system of our country, the object of the high interest transfer crime is our credit fund management system.
The second part mainly discusses the difficult cognizance problem in the crime of transferring loan to high profit. In the enterprise, when the enterprise makes a high profit loan of its own funds to others, while the bank loan is used for the business of its own enterprise, it appears the loan of the enterprise on one side and transfers the loan to others, but the funds transferred to others are not the credit funds to the bank. This kind of behavior cannot be identified as The crime of high interest transfer loan is the basic requirement of the principle of the legality of crime and punishment. It is also the performance of the modesty of the criminal law. In the loan to the financial institutions, the actor has too much loan to the financial institution, which exceeds the amount of the use of the project, the loan has a certain balance, the perpetrator transfers the balance part of the loan to others, and the actor is applying for a loan. The amount of funds needed for the project is relatively clear. When applying for a loan, it intends to apply for a loan to a financial institution and transfer the excess balance to others in order to gain interest. For the balance part, the actor is obviously "a credit fund for the financial institution". The act of giving to others, and in order to gain interest, is obviously in accordance with the constitutive requirements of the crime of transferring loan to high interest. It should be dealt with in the case of the crime of high interest transfer. If the perpetrator loan to the financial institution according to the funds needed by the project, but later due to the change of the market or the adjustment of the project, the fund is superfluous and the perpetrator will make the part of the balance high. As the actor applies for a loan to a financial institution according to the needs of the project, there is no act of "collecting credit funds from the financial institutions", that is, the management order of the credit funds in our country has not been destroyed, and the perpetrator does not have the purpose of making profit for the purpose of making profit. So the actor from the bank is from the bank. To obtain a loan, that is to profit the legitimate right to use the fund. Even if the loan expires, it does not pay the loan on time and is responsible for the bank to undertake the liability for breach of contract in accordance with the law. It is not enough to constitute the act of "taking credit funds for the financial institutions" in the crime of high interest transfer. Secondly, the loan will be obtained by the perpetrator. To transfer loans to others, which belongs to the use of their own funds, belongs to the typical private lending behavior, and does not infringe on the state's financial management order for credit funds. Therefore, it does not constitute a high interest transfer crime. From the provisions of the crime of transferring loans from high interest, there is a "credit fund for financial institutions" and "a high profit transfer to others" two. It seems to be a kind of behavior, which seems to be clear about the sequence of "the act of arbitrage" before, and the order of the "transfer behavior" in the post. The law clause of the crime of high interest loan is only a logical relation between the two acts, that is, the actor passes "the credit fund of the financial institution", which is used for "high profit to lend to others", not to emphasize the time successively. Therefore, it does not affect the cognizance of the crime of high interest transfer before or before the occurrence of the credit funds of the financial institutions, or the "high interest transfer to others". The nature of the benefits fee directly determines what crime is constituted, if the benefit is only given to the leadership or decision maker of a few helping loans within the unit, The unit that is busy applying for a loan does not gain profit, that is, no profit is made, only the leader will abuse his power to profit for others. The benefit fee of the income is a bribe, and the leadership of the loan may constitute a crime of bribery or non state staff bribery, and the enterprise will not constitute a crime of high interest transfer. In the loan, the enterprise received the benefit fee, and the enterprise carried out the behavior of "taking the credit funds of the financial institutions" and "transferring the loan to others" in the behavior. In order to make profit, it infringed the management order of the credit funds of our country and conformed to the constitutive requirements of the crime of high interest transfer. In the name of one's own, after applying for a loan to another person and receiving the benefits or service fees from it, it obviously has the behavior of "taking the credit funds of the financial institutions" and "transferring the loan to others", and the benefit fee or service fee is for the profit, and it also infringes the object of the crime of high interest transfer, and constitutes the crime of high interest transfer. There is a real transaction relationship between people, and because the perpetrator pays "prepayment", relative, it will enjoy the corresponding discount or discount when conducting the transaction. Therefore, the value of the party to pay the goods is far more than the "prepayment" paid by the perpetrator, which is also a manifestation of the transaction, secondly, because the market is unpredictable. The value of the commodity is constantly changing, and it is difficult to accurately measure the value of the commodity far more than the "prepayment" paid by the actor. Again, the perpetrator carries on the commercial transaction. The profit is the pursuit of its business, the legitimate pursuit, and the legal benefit of the crime of high interest transfer. Therefore, this situation does not conform to the constitutive requirements of the crime of high interest transfer. In this case, the staff of financial institutions also constitute the crime of misappropriating public funds or misappropriation of funds, that is, the imaginative concurrence committed. Therefore, in this case, the staff and the actor of the financial institutions are more complex and should be treated differently.
The third part mainly discusses the distinction between the crime of high interest transfer and other financial crimes. The crime of high interest transfer and the crime of loan fraud, which belong to the type of loan, are all crimes that harm the order of financial management, and there is a close connection between the two. For a person who violates the legitimate acquisition of a loan or violates the use of a loan according to the agreement, as long as there is one of two, it constitutes "arbitrage". The "fraud" is mainly aimed at illegal possession, and the fictitious facts are taken to make the relative people fall into the wrong understanding, thus realizing the illegal occupation, and the essence is a "fraud" act. Therefore, loan fraud is fraudulent. The distinction between "fraud" in the crime of fraud and "arbitrage" in the crime of transferring loan to high interest is very obvious: "fraud" is aimed at illegal possession, "arbitrage" is not the purpose of illegal possession, and the actor has the meaning of return. It is only a false declaration or false statement of the use of the loan; the "deception" of the crime of loan fraud is not necessarily the right one. The use of loans is deceiving, but the perpetrator in order to hide their ability to repay the loan, through the introduction of the prospect of the introduction of funds and projects, the form of false guarantee and other forms to obtain loans. In addition, the high interest transfer crime also includes another act, "high interest transfer to others", and the crime of fraud does not contain this act. The crime of transferring loan and misappropriation of funds, all of the two are intentional crimes, all are the amount offense, all are crimes against funds, in the objective aspect of the crime, there are certain "deceit", "concealment" behavior, the subjective aspects of the crime are direct intentional, all can set up a crime prepreparation, suspension, attempted crime and misappropriation The behavior of the crime of funds overlaps. The staff of the financial institution misappropriated the capital of the unit, and the high profit was borrowed to other people. In fact, after the staff of the unit misappropriated the unit funds and then lent the use of other people, it did not exist the problem of collecting credit funds and did not constitute the crime of high interest transfer. The staff of the financial institution can only be misappropriated. There are some common points in the crime of funds or misappropriation of public funds. There are some common points between the crime of transferring the loan of high interest and the crime of cheating on the loan. For example, the two parties have the same subject of the crime; the right to use the credit funds is infringed on the object. In the judicial practice, there are also the problems of the concurrence of two crimes, and the most common law competition relations are the special law and the ordinary law, the competition between the law and the light law. China's law stipulates that the general principle of concurrence in dealing with law is that special law is superior to ordinary law, and that the law is superior to light law. From the point of view of law, the degree of punishment in the crime of taking loans from natural persons for the main body is roughly equal to the degree of punishment in the crime of high interest transfer, while the former is heavier than the latter in the unit crime. According to the principle of dealing with the light law, it seems that the crime of obtaining a loan is more reasonable. But from the constitution of the two crimes, in the case of concurrence, the crime of high interest transfer is covered by the crime of cheating and borrowing, and the relationship between the ordinary law and the special law is formed between the two parties, and the crime of transferring the loan of high interest can be taken as a special case of the crime of fraud, and the priority of the special law is to give priority to the general law. In this case, the author holds that, in this case, a compromise can be taken to deal with the different principles in accordance with the different circumstances from the perspective of practical operation. Specifically, under the circumstances of the criminal subject is the unit, it is superior to the heavy law. The principle of light law is to convict the crime of fraud and punishment. The subject of the crime is the principle of the special law, which is superior to the ordinary law in the case of the natural person, and is convicted and punished with the crime of transferring the loan with high interest.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
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本文编号：2153174
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