P2P网络借贷平台异化的刑事规制

Criminal Regulation on the Dissimilation of P2P Online Lending Platform

金融犯罪一直是我国刑法打击的重点,近年来以P2P网络借贷为名义进行非法集资的刑事案件出现惊人的攀升速度,其中特别典型的债权转让模式备受争议,而这种模式的P2P网络借贷的实质是"类资产证券化"的活动,着眼于穿透式监管的效果和要求,宜对之采用证券式监管措施。但在我国证券法没有修订的前提下,这种行为难以构成擅自发行股票、公司、企业债券罪和非法经营罪。基于刑法实质解释论立场,因其业务模式本身具有的风险性极易触犯"非法性、公开性、利诱性、社会性",从而其有可能构成非法吸收公众存款罪。对金融犯罪的刑法规制,必然会涉及到洗钱罪,洗钱罪在打击金融犯罪方面应当跟进;同时结合正在试点的认罪认罚从宽制度,论及宽严相济刑事政策在打击金融犯罪中的作用。

Financial crimes have always been the striking focus of criminal law in China. In recent years,illegal fund-raising cases under the name of P2P online lending have been increasing rapidly,among which the most typical and controversial topic is the mode of the creditor's rights transfer. This article takes this as the starting point,pointing out that this mode is similar to asset securitization which should be included in the securities regulatory system according to the theory of penetrating supervision. As long as China does not revise the Securities Law,the P2P online lending through transferring creditor's rights can hardly be considered as crime of illegal business operations,or crime of issuing stocks,companies and enterprise bonds without authorization. According to the substantive interpretation of criminal law,however,this kind of P2P lending can be considered as Crime of illegally absorbing public deposits because the risk of it has the characteristics of illegality,openness,inducements and sociability. Crime of money laundering intertwining with financial crimes harm the society,so it is important to perfect the legislation of crimes of money laundering. At the same time,the guilty plea system being plotted should be combined with the striking of financial crimes on implementing the criminal policy of combining leniency with rigidity.