“套路贷”共犯类型及其认定

Classifications and Identification of Joint Crime of Liar’s Loan

在"套路贷"犯罪的刑法语境下,结合"套路贷"公司的阶段化考察可以发现,在"套路贷"公司设立阶段、开展业务阶段及讨取本息阶段均存在形成共犯之可能。然而,在对"套路贷"共犯进行认定之时却往往存在如下问题:一是对中立帮助行为的认定存在主观认知偏差;二是存在扩大主犯认定范围之嫌;三是犯罪数额计算有时不当。在面对如此司法认定偏差之时,需要坚持以"共同意志"为核心的共同故意认定要素、以"制造不被法所允许的风险"为中立帮助的处罚边界、以社会危害性程度作为主从犯区分的重要考量,具体分析内部人员行为性质及结合证据存疑原则认定犯罪金额。这样,便有利于实现定罪与量刑的科学化、合理化,以此达到刑罚个别化。

In the context of criminal law on crime of "liar’s loan" it is necessary to combine the stage investigation on the company of "liar’s loan" and examine the typology of accomplices.At the stage of establishment,the business,the capital,and interest stage of the "liar’s loan" company,there are different circumstances of the possibility of accomplice.However,the classification of the types of accomplices is only superficial work,and the judicial personnel must also pay attention to the following common problems in the identification of accomplices in different stages.Second,the boundary of the punishment of neutral help behavior lies in whether the behavior itself causes risks that are not prohibited by criminal law so as to exclude the behavior that is objective and harmless but plays a role in the behavior or the result of the principal offender from the criminal law evaluation.Third,the reasonable identification of the "liar’s loan" company’s internal staff behavior nature,should not expand,should not indulge.Finally,the distinction between the principal and subordinate criminals should be based on subjective and objective materials and take social harmfulness as a comprehensive consideration factor.