论非法集资类型犯罪的若干认定问题
发布时间：2018-12-14 00:14
【摘要】：近几年,我国非法集资类型案件频发,并且呈逐年上升趋势,刑法对非法集资类型案件的规制也日趋严厉。这类现象的产生,一方面是由于民营中小型企业的融资渠道较窄,另一方面是因为司法实践中民间借贷与非法吸收公众存款罪的界限不清、非法吸收公众存款罪与集资诈骗罪的界限模糊。本文力图依据法条和司法解释的相关规定,论述非法吸收公众存款罪与民间借贷之间的区别、非法吸收公众存款罪与集资诈骗罪之间的区别等问题。本文的基本观点是:在既有的法律前提下,应坚持刑法的谦抑性原则,来解决非法集资型犯罪中的罪与非罪、此罪与彼罪问题。在本文的写作中,作者采用了规范分析、案例分析等研究方法,收集并参考了大量关于这方面的论文论著,理出了理论界对这些问题争议的焦点所在。这些焦点问题主要包括,对于非法吸收公众存款罪的“社会公众”、“集资性质”、“扰乱金融秩序”等的认定问题,以及对于集资诈骗罪的“非法占有目的”的认定问题,等等。在此基础上,阐明自己对非法集资类型犯罪中的罪与非罪、此罪与彼罪划分问题的基本观点。作者认为,对于非法集资类型的犯罪,之所以要坚持刑法的谦抑性原则并遵循少杀慎杀的宗旨,主要有以下两点原因:一是集资犯罪的受害人本身也有一定的过错,其对自我招致的风险应承担一定的责任;二是为了拓宽民营企业的融资渠道,为民营企业的发展提供便利条件。所以,在司法实践中,要严格把握非法吸收公众存款罪与集资诈骗罪的犯罪特征,给民间借贷行为预留合法化空间。
[Abstract]:In recent years, the cases of illegal fund-raising type occur frequently in our country, and show an increasing trend year by year, and the regulation of illegal fund-raising type cases is becoming more and more strict in criminal law. This kind of phenomenon, on the one hand, is due to the narrow financing channels of small and medium-sized private enterprises, on the other hand, the line between private lending and the crime of illegally absorbing public deposits is not clear in judicial practice. The line between the crime of illegally absorbing public deposits and the crime of raising funds is blurred. According to the relevant provisions of the law and judicial interpretation, this paper tries to discuss the difference between the crime of illegally absorbing public deposits and private loans, and the difference between the crime of illegally absorbing public deposits and the crime of fraud of raising funds, and so on. The basic point of view of this paper is: under the existing legal premise, we should adhere to the principle of modesty of criminal law to solve the problem of crime and non-crime in illegal fund-raising crime. In the writing of this paper, the author adopts normative analysis, case analysis and other research methods, collects and refers to a large number of papers on this aspect, and points out the focus of controversy on these issues in the theoretical circle. These focus issues mainly include the identification of the "social public", "the nature of raising funds", "disrupting the financial order" and so on for the crime of illegally absorbing deposits from the public, as well as the identification of the "purpose of illegal possession" of the crime of fund-raising fraud. Wait On this basis, the author expounds his basic views on the crime and non-crime in the type of illegal fund-raising, and the division between the crime and the crime. The author believes that there are two main reasons why we should adhere to the principle of modesty in criminal law and follow the aim of killing less and killing carefully for the crime of illegally raising funds: first, the victims of the crime of raising funds also have certain mistakes. They should bear certain responsibility for the risks incurred by themselves; Second, in order to broaden the financing channels of private enterprises, private enterprises to provide convenient conditions for the development. Therefore, in the judicial practice, we should strictly grasp the criminal characteristics of the crime of illegally absorbing public deposits and the crime of financing fraud, and reserve legalized space for private borrowing.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.33
本文编号：2377526
[Abstract]:In recent years, the cases of illegal fund-raising type occur frequently in our country, and show an increasing trend year by year, and the regulation of illegal fund-raising type cases is becoming more and more strict in criminal law. This kind of phenomenon, on the one hand, is due to the narrow financing channels of small and medium-sized private enterprises, on the other hand, the line between private lending and the crime of illegally absorbing public deposits is not clear in judicial practice. The line between the crime of illegally absorbing public deposits and the crime of raising funds is blurred. According to the relevant provisions of the law and judicial interpretation, this paper tries to discuss the difference between the crime of illegally absorbing public deposits and private loans, and the difference between the crime of illegally absorbing public deposits and the crime of fraud of raising funds, and so on. The basic point of view of this paper is: under the existing legal premise, we should adhere to the principle of modesty of criminal law to solve the problem of crime and non-crime in illegal fund-raising crime. In the writing of this paper, the author adopts normative analysis, case analysis and other research methods, collects and refers to a large number of papers on this aspect, and points out the focus of controversy on these issues in the theoretical circle. These focus issues mainly include the identification of the "social public", "the nature of raising funds", "disrupting the financial order" and so on for the crime of illegally absorbing deposits from the public, as well as the identification of the "purpose of illegal possession" of the crime of fund-raising fraud. Wait On this basis, the author expounds his basic views on the crime and non-crime in the type of illegal fund-raising, and the division between the crime and the crime. The author believes that there are two main reasons why we should adhere to the principle of modesty in criminal law and follow the aim of killing less and killing carefully for the crime of illegally raising funds: first, the victims of the crime of raising funds also have certain mistakes. They should bear certain responsibility for the risks incurred by themselves; Second, in order to broaden the financing channels of private enterprises, private enterprises to provide convenient conditions for the development. Therefore, in the judicial practice, we should strictly grasp the criminal characteristics of the crime of illegally absorbing public deposits and the crime of financing fraud, and reserve legalized space for private borrowing.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.33
【参考文献】
相关期刊论文 前3条
1 肖晚祥;;非法吸收公众存款罪的司法认定研究[J];东方法学;2010年05期
2 张明楷;论财产罪的非法占有目的[J];法商研究;2005年05期
3 李振林;;刑法规制非法集资限度问题研究[J];时代法学;2012年04期
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