摘要
"套路贷"源于高利贷,是高利贷的异化,其形态包括"套路贷"违法、"套路贷"犯罪等,呈多层次阶梯式演进形态。"套路"是"套路贷"犯罪的承载本体,是刑事不法的依据。在惩治"套路"时,应防止走上"手段违法+高利贷=犯罪"和"手段犯罪+高利贷=财产犯罪"的扩张路径,合理把握刑法介入的边界。"贷"是刑法不宜逾越的红线,以"贷"制"套路贷"的思路并不妥当。当前在治理"套路贷"中,刑法处罚越位、行政监管缺位,刑法应当回归"二次法"本位,并充分发挥行政法的作用。
The "trap loan" is originated and dissimilarly developed from usury. Its forms include illegal "trap loan" and criminal "trap loan", showing the multi-level and step-by-step evolution. " Trap" is the main body of the crimes in "trap loan" and the basis for criminal illegality. When combating the "trap", we should be alert to expansion of the scope of crime by adopting the approach of " illegal means + usury =crime" and "criminal means + usury = crime against property", and reasonably clarify the boundary of intervention by the criminal law. "Loan" is the red line that criminal law shouldn’t cross, and the idea of using the "loan" to control "trap loan" is not appropriate. At present, the criminal law does too much and the administrative supervision does too little in the governance of the "trap loan", so the criminal law should return to the original place of "the secondary law" and let administrative law give its full play.
出处
《政治与法律》
CSSCI
北大核心
2019年第12期35-42,共8页
Political Science and Law
关键词
“套路贷”
非法经营
行刑错位
"Trap Loan"
Illegal Business
Misplacement of Administrative Law and Criminal Law