网上理财交易的刑事风险及其刑法规制逻辑

The Criminal Risk of Online Financial Transaction and Its Criminal Law System Logic

网上理财在近年来迅速发展,与之相伴的刑事风险不容忽视,因而对其进行刑法规制也是必然的选择。对网上理财本身的交易特征及结构进行分析,并在此基础上探寻其刑事风险的"风险点"是实现精细化规制最具可行性的方式之一。从交易特征和交易内容角度分析,我国目前金融市场中的网上理财产品主要包括债权型、基金型、信托型及保险型四种。而从相关公司的设立到运营的过程中,该四类网上理财分别面临着擅设、运营及衍生风险。前两种风险与网上理财交易联系紧密,相关刑法规制尽管是通过相似罪名实现的,但每种类型的网上理财背后被规制的逻辑却因其交易结构的不同而大相径庭。衍生风险虽与交易本身没有直接联系,但却涉及公民信息保护等重要内容,因而也不可轻视。

The recent years has witnessed the rapid development of online financial management,and the accompanying criminal risks cannot be ignored. Therefore,it is a necessary choice to impose criminal regulations on it. To regulate it refinly,one of the most feasible ways is to analyze the transaction characteristics and structure of online financial management,and then to explore the " risk points" of its criminal risks. By analyzing the aspects of transaction characteristics and transaction conten of the online financial management products in the current Chinese financial market,they are mainly classified into four types: " debt-type", " fund-type", "trust-type" and " insurance-type". From the establishment of related companies to their operations,the above four types respectively are confronted with " unauthorized establishment" risks, " operations" risks,and " derivative" risks. The first two kinds of risks are closely related to online financial transactions. Although the relevant criminal laws and regulations are implemented through similar crimes,although the logic behind each type of online financial management differs due to the difference in the transaction structure,the " derivative" risk is not directly related to the transaction itself,it involves the important content such as the protection of citizen information,so it should not be underestimated.