集资诈骗罪主观要件“非法占有目的”的认定
发布时间：2019-06-09 18:58
【摘要】：2007年下半年以来，央行多次上调存款准备金率和基准利率，严格控制货币信贷总量，贷款难度加大，国内社会资金供需紧张，中小民营企业信贷困难，社会资金供需不平衡，非法集资活动迅速大规模爆发。作为非法集资类犯罪中唯一仍然保留死刑这一极刑的罪名，集资诈骗罪一直是我国司法机关打击金融犯罪工作的重点。同其他非法集资类罪名不同，集资诈骗罪要求行为人主观上具备“非法占有目的”。可以说，行为人主观上是否存在“非法占有目的”是集资诈骗罪区别于其他非法集资类犯罪最重要的特征。 在这一背景下，本文结合我国刑事立法和司法实践，就集资诈骗罪“非法占有目的”的认定问题进行研究。 本文的第一章针对司法实践中普遍存在的集资诈骗罪“非法占有目的”认定难题进行探讨，提出运用司法推定认定集资诈骗罪“非法占有目的”，对其分别从必要性、合理性两个方面进行了详细的说明和论证。在对合理性进行分析时，本文重点选取了司法推定的过程符合人类认识的普遍规律、刑事政策和价值平衡、诉讼效率、刑事诉讼法律的基本原则等多个角度进行论证。而在对必要性的证明中，本文则主要通过对比证明行为人主观心理态度的两种途径——行为人自身对其内心意图的陈述和考察行为人的客观行为，在难易程度和适用范围上的差别进行分析论证。在此基础上，本文确定了集资诈骗罪“非法占有目的”司法推定所应当遵循的准则和方法，即基础事实必须真实可靠、基础事实与待证事实之间具备常态联系、允许反驳推翻推定。 本文的第二章梳理了我国关于集资诈骗罪“非法占有目的”的认定的相关规范性文件，并对1996年颁布的《关于审理诈骗案件具体应用法律若干问题的解释》和2000年发布的《全国法院审理金融犯罪案件座谈会纪要》分别从基础事实的选取和是否允许反驳推翻推定两个方面进行了评析。在对2010年颁布的《关于审理非法集资刑事案件具体应用法律若干问题的解释》进行评析时，本文一方面通过对其新增的条款进行重点分析肯定了其积极意义；另一方面又从刑法基本理论、刑事政策和具体认定细节三个方面指出了其存在的问题。该解释过多强调集资完成后的各种表现，以集资款是否返还作为判断的前提，在刑法基本理论方面违背了犯罪既遂的一般原理，在刑事政策方面又有放纵犯罪之嫌，在具体的细节上也存在诸如“如何区分用于生产经营活动所需和肆意挥霍”等许多值得推敲的地方。 本文的第三章主要以2010年颁布的《关于审理非法集资刑事案件具体应用法律若干问题的解释》中关于集资诈骗罪“非法占有目的”认定的八项具体规定为主要研究对象，分析集资诈骗罪“非法占有目的”具体认定中的疑难问题。第一节以集资款的用途为出发点，分析“将集资款未用于或未全部用于生产经营活动”、“肆意挥霍致使集资款不能返还”及“将集资款用于违法犯罪活动”三项条款的具体认定。第二节则重点分析“携带集资款逃匿”及“逃避返还”条款的认定。本文在第三节分析了兜底条款中“其他情形”的认定，认为司法机关不应单纯以行为人某个时间段的某一特定行为作为认定的唯一依据，而应顺应对非法集资类犯罪打击的刑事政策，一方面对于经营活动进行真实性、合法性及盈利性的事前考察，另一方面对集资款进行用途上的事后考察，综合分析以达到谨慎定罪和从严打击的双重效果。
[Abstract]:Since the second half of 2007, the central bank has repeatedly raised the reserve reserve ratio and the benchmark interest rate, strictly controls the total amount of the currency credit, the difficulty of the loan is increased, the supply and demand of domestic social funds are tight, the credit of the small and medium-sized private enterprises is difficult, the supply and demand of the social funds are not balanced, The illegal fund-raising activities have exploded on a large scale. As the only death penalty in the crime of illegal fund-raising, the crime of fund-raising fraud has been the focus of the work of the judicial organs in the fight against financial crime. Unlike other illegal fund-raising charges, the crime of fund-raising fraud requires the actor to have a subjective "the purpose of illegal possession". It can be said that the subjective existence of the "the purpose of illegal possession" is the most important characteristic of the crime of fund-raising and fraud in other illegal fund-raising crimes. In this background, this paper makes a research on the identification of the "the purpose of illegal possession" of the crime of fund-raising fraud in the light of the criminal legislation and the judicial practice of our country. In the first chapter, the paper discusses the problem of the "the purpose of illegal possession" identification of the crime of fund-raising and fraud in the judicial practice, puts forward the "the purpose of illegal possession" of using the judicial presumption to identify the crime of financing fraud, and makes a detailed description of the two aspects of necessity and rationality, respectively. On the basis of the analysis of the rationality, the paper points out that the process of judicial presumption is in conformity with the universal law of human cognition, the balance of criminal policy and value, the efficiency of litigation, the basic principle of the law of criminal procedure and so on. In the proof of necessity, this article mainly compares the two ways to prove the subjective psychological attitude of the actor, the author's own statement of the inner intention and the objective behavior of the study agent, and the difference between the difficulty degree and the scope of application. On the basis of this, the paper sets out the principles and methods to be followed for the purpose of "the legal presumption" for the purpose of "the illegal possession of the crime of financing fraud", that is, the basic facts must be true and reliable, the basic facts and the facts to be verified have the normal connection, and the refutation is allowed to be refuted. The second chapter of this article is related to the identification of the "the purpose of illegal possession" of the crime of fund-raising and fraud. Normative documents, as well as the interpretation of a number of issues concerning the specific application of law in the case of fraud cases promulgated in 1996, and the summary of the colloquium on the hearing of financial crimes of the National Court issued in 2000, respectively, from the selection of the underlying facts and whether the two aspects of the presumption are allowed to be refuted In this paper, on the one hand, on the one hand, the positive significance of the key analysis of the new provisions is given, and on the other hand, from the punishment, the paper makes a comment on the interpretation of several questions about the specific application of the law on the trial of illegal fund-raising criminal cases. The three aspects of the basic theory of law, the criminal policy and the specific identification are pointed out There are some problems. The explanation is too much to emphasize the various performance after the fund-raising is completed and whether the funds are returned as the premise of the judgment. In the basic theory of the criminal law, the general principle of the crime is violated, and in the aspect of the criminal policy. As a result of the crime, there are many merits such as "How to distinguish between the required and the profligacy of the production and operation activities" and so on in the specific details The third chapter of this article is mainly based on the eight specific provisions of "the interpretation of the specific application law of the criminal cases of illegal fund-raising" issued in 2010, and the eight specific provisions of the "illegal possession of the crime of financing fraud". In order to study the main research objects, the paper analyzes the "the purpose of illegal possession" of the crime of fund-raising and fraud. The first section is to analyze the "The funds collected are not used or are not used for the production and operation activities", the "The profligacy has caused the fund to not be returned." and the "to use the funds for criminal and criminal activities" in the first section, taking the purpose of the fund collection as the starting point. The second section focuses on the "to carry a set of funds to escape" and the "escape of return" 【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2495811
[Abstract]:Since the second half of 2007, the central bank has repeatedly raised the reserve reserve ratio and the benchmark interest rate, strictly controls the total amount of the currency credit, the difficulty of the loan is increased, the supply and demand of domestic social funds are tight, the credit of the small and medium-sized private enterprises is difficult, the supply and demand of the social funds are not balanced, The illegal fund-raising activities have exploded on a large scale. As the only death penalty in the crime of illegal fund-raising, the crime of fund-raising fraud has been the focus of the work of the judicial organs in the fight against financial crime. Unlike other illegal fund-raising charges, the crime of fund-raising fraud requires the actor to have a subjective "the purpose of illegal possession". It can be said that the subjective existence of the "the purpose of illegal possession" is the most important characteristic of the crime of fund-raising and fraud in other illegal fund-raising crimes. In this background, this paper makes a research on the identification of the "the purpose of illegal possession" of the crime of fund-raising fraud in the light of the criminal legislation and the judicial practice of our country. In the first chapter, the paper discusses the problem of the "the purpose of illegal possession" identification of the crime of fund-raising and fraud in the judicial practice, puts forward the "the purpose of illegal possession" of using the judicial presumption to identify the crime of financing fraud, and makes a detailed description of the two aspects of necessity and rationality, respectively. On the basis of the analysis of the rationality, the paper points out that the process of judicial presumption is in conformity with the universal law of human cognition, the balance of criminal policy and value, the efficiency of litigation, the basic principle of the law of criminal procedure and so on. In the proof of necessity, this article mainly compares the two ways to prove the subjective psychological attitude of the actor, the author's own statement of the inner intention and the objective behavior of the study agent, and the difference between the difficulty degree and the scope of application. On the basis of this, the paper sets out the principles and methods to be followed for the purpose of "the legal presumption" for the purpose of "the illegal possession of the crime of financing fraud", that is, the basic facts must be true and reliable, the basic facts and the facts to be verified have the normal connection, and the refutation is allowed to be refuted. The second chapter of this article is related to the identification of the "the purpose of illegal possession" of the crime of fund-raising and fraud. Normative documents, as well as the interpretation of a number of issues concerning the specific application of law in the case of fraud cases promulgated in 1996, and the summary of the colloquium on the hearing of financial crimes of the National Court issued in 2000, respectively, from the selection of the underlying facts and whether the two aspects of the presumption are allowed to be refuted In this paper, on the one hand, on the one hand, the positive significance of the key analysis of the new provisions is given, and on the other hand, from the punishment, the paper makes a comment on the interpretation of several questions about the specific application of the law on the trial of illegal fund-raising criminal cases. The three aspects of the basic theory of law, the criminal policy and the specific identification are pointed out There are some problems. The explanation is too much to emphasize the various performance after the fund-raising is completed and whether the funds are returned as the premise of the judgment. In the basic theory of the criminal law, the general principle of the crime is violated, and in the aspect of the criminal policy. As a result of the crime, there are many merits such as "How to distinguish between the required and the profligacy of the production and operation activities" and so on in the specific details The third chapter of this article is mainly based on the eight specific provisions of "the interpretation of the specific application law of the criminal cases of illegal fund-raising" issued in 2010, and the eight specific provisions of the "illegal possession of the crime of financing fraud". In order to study the main research objects, the paper analyzes the "the purpose of illegal possession" of the crime of fund-raising and fraud. The first section is to analyze the "The funds collected are not used or are not used for the production and operation activities", the "The profligacy has caused the fund to not be returned." and the "to use the funds for criminal and criminal activities" in the first section, taking the purpose of the fund collection as the starting point. The second section focuses on the "to carry a set of funds to escape" and the "escape of return" 【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
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