地下钱庄行为的定性与防控——刑法与经济法互动的视角

On essence and prevention and control of underground bank:from perspective of interaction of criminal law and economic law

地下钱庄并非规范的法律概念,我国对地下钱庄法律价值的判断是基于其组织的非正规性而非其行为的违法性,对地下钱庄行为更多地是借助刑法规制和执法严惩而非制度规范和监管指引。以刑法与经济法互动为视角,对地下钱庄所从事的三类主要业务进行具体分析,对相关法律法规予以细致梳理和客观评价,并结合我国金融生态环境和地下钱庄行为特点提出相应的立法建议和防控对策。提出在治理地下钱庄的过程中应当做到经济法规制在前、刑法惩治在后,监管在前、执法在后,宽严相济、疏堵结合。

The underground bank is not a normative legal conception. In China, the judgement of legal value of underground bank is based on the informality of its institution rather than the illegitimacy of its behaviours, and the regulation of underground bank behaviours is mostly by means of criminal law and strict law enforcement rather than institution regulation and supervision guidance. From perspective of interaction of criminal law and economic law, three main businesses of underground bank are analyzed in detail, related laws and regulations are summurized carefully and evaluated objectively, and corresponding legislative suggestions and prevention countermeasures are proposed according to the financial ecological environment in China and the behavior characteristics of Underground bank. Conclusions are drawn that in the process of governing underground bank, it should be regulated by economic law firstly and punished by criminal law secondly, supervised firstly and enforced secondly, and combining punishment with leniency, dredging with stopping.