非法集资与民间借贷的刑民界分

Distinguishing Criminal and Civil Proceedings of Illegal Fund-raising and Private Lending

涉众型民间债务违约事件司法处理的难点主要在于非法集资与合法民间借贷的性质界定以及刑事定性后出现具体处理上的刑民交叉现象。本文认为,对非法集资的刑事认定宜聚焦于"扰乱金融秩序"的实质要件设置专业审查程序严格把握,非法集资的刑民处分则应统合于衡平原则,并以此为基础建构相关制度。

The difficulty of the judicial treatment of the default events concerning private debts of massive scale mainly lies in how to define illegal fund- raising and legal private lending, and the involvement of criminal and civil proceedings when the judicial practice is in process after the case is defined as criminal. The criminal definition of illegal fundraising is suggested to focus on ＂whether it disrupts the financial order＂ so as to establish professional review procedure. Whereas, the principle of equity should be integrated to treat illegal fundraising criminally and civilly, and the related mechanisms should be set up accordingly.