刑法规制高利转贷行为的合理性分析——以高利转贷银行贷款行为为对象

Analysis of the Rationality of Loans Transferring Behavior of High Interest Rate Regulated by Criminal Law——Taking the Bank Loans Transferring Behavior of High Interest Rate as the Object

高利转贷罪作为一种侵害信贷秩序的犯罪,根据当前银行贷款业和民间借贷的发展现状仍有适用的空间和必要性,提倡废止该罪在可行性和必要性上均缺乏充足理由和实证素材支撑。通过分析2012 年至2018 年的高利转贷罪刑事判决书可以发现,司法实践中对高利转贷犯罪的打击既体现出此类犯罪作案难度低、非法盈利空间大等特点,也反映出刑事司法还未完全适应社会控制此类犯罪的需求,银行贷款业的行政监管和刑事司法衔接还存在一定缝隙。现阶段应严格限制银行贷款对不合法高利贷资金的供给,严厉打击套取银行政策性贷款的行为,同时完善刑法与金融法的衔接。

As a crime against the credit order, crime of transferring loans in high interest still has space and necessity to apply according to the current development of the bank loan industry and private lending, Advocating the abolition of the crime lacks sufficient reasons and evidence for feasibility. By analyzing the criminal judgments of the crime of transferring loans in high interest from 2012 to 2018, judicial practice not only reflects the low difficulty of such crimes and the large illegal profit margins, but also shows that the criminal justice has not fully adapted to the needs of society to control such crimes. There is still a interval between the administrative supervision of the bank loan industry and the criminal justice system. At present, the supply of illegal loan funds with high interest by bank loans should be strictly restricted, and the illegal access to bank policy loans should be severely cracked down. Meanwhile, the connection between the criminal law and financial law should be improved as well.