涉黑涉恶型套路贷犯罪刑法治理的负面溢出效应研究

Negative Spillover Effect of Criminal Law Governance in trick loan Crimes relating to underworld and evil forces

近年来,"套路贷"作为一种分工明确、隐蔽性强、社会危害大的犯罪现象,被纳入到"扫黑除恶专项斗争"的范围予以严厉打击。工作开展以来,人民群众安全感、满意度持续提升,取得了看得见、感受得到的阶段性成效。但是在司法实践中,对套路贷相关犯罪的打击也存在负面溢出效应问题,其主要体现在:以套路贷取代特定犯罪构成要件;因套路贷而被定性为涉黑涉恶,不当扩张处罚范围;因"套路贷"或"涉黑涉恶"标签而被过重处罚。对此,应在坚持罪刑法定原则和刑法的谦抑性原则的基础上,严格把握"使被害人陷入错误认识"的构成要件,并因案制宜地考虑可否以其他更适合的罪名进行认定,从而尽可能消除存在的问题。

As a crime with clear task division, strong concealment, and great social harm, trick loan has been severely cracked down in the special campaign to fight against underworld and evil crimes, which have achieved visible and tangible phased results, continuously improving security sense and satisfaction of the people. However, there are negative spillover effects in the crackdown on trick loan in judicial practice, including replacing routine criminal constituent elements with trick loans;being classified as crimes relating to underworld and evil forces and improperly expanding the scope of punishment;excessive penalties for the labels of trick loan or relating to underworld and evil forces. Therefore, the constituent elements of inducing the victim to fall into misconception should be grasped strictly, and more appropriate crimes should be made adhering to the principle of statutory criminal punishment and the principle of moderation in criminal law, in order to eliminate the existing problems.