高利贷行为及其衍生异化犯罪的规制及治理——兼论高利贷与“套路贷”的异同

The Regulation and Management of Usury and Its Derivative and Alienated Crime--Research on the Similarities and Differences between Usury and Taolu Loan

近年来,“套路贷”犯罪频发,成为打击的重点。“套路贷”往往披着“高利贷”的外套,以“借贷”为名行“侵财”之实,是高利贷的异化;而高利贷是基于借贷双方合意的民间借贷行为,应严格限制其入刑的范围。两者虽然因有无借贷合意而存在本质不同,但均产生于信用缺失。因此,对于两者的法律规制,可以基于借贷合意的真实、不真实、法律拟制瑕疵进行不同处理,便于有效整治借贷市场,提前预防高利贷的衍生和异化犯罪的发生。《关于办理非法放贷刑事案件适用法律若干问题的意见》的出台也是这种精神的体现。对高利贷行为衍生异化犯罪的治本之法还在于回归信用,重建信用体系:一是完善金融机构信用评价机制;二是构建民间借贷信用平台。

In recent years,the crime of Taolu Loan happens frequently and becomes the focus of the fight.Taolu Loan often wears the coat of usury,is a kind of defrauding but in the name of loan,which is the variation of usury.On the other hand,usury is a kind of private lending based on mutual agreement,so we should strictly restrict the scope of usury crime.Although the essences of usury and Taolu Loan are different because of different states of mutual agreement on lending,both of them originate from the lack of credit.Therefore,the legal regulation of usury and Taolu Loan can be branched based on the different situation of mutual agreement,dividing into truth,untruth and flaw of legal fiction,and then be handled differently to renovate the loan market effectively and prevent the derivative and alienated crime of usury in advance.The promulgation of Opinions on the Application of Law in Handling Criminal Cases of Illegal Loan is also the embodiment of this spirit.But the fundamental solution of usury and its derivative and alienated crime relies on coming back to credit and rebuilding the credit system:one is to improve the credit evaluation mechanism of financial institutions;the other is to build a credit platform for private lending.