论“催收非法债务罪”中“高利贷”的认定标准

The Identification Standard of Usury in the Crime of Collecting Illegal Debts

《刑法修正案(十一)》新增“催收非法债务罪”,对暴力催收高利贷的行为进行打击,但高利贷的认定标准并不明确,使该罪的适用存在扩大化的风险。债务依其法律性质可以分为合法之债、自然之债、非法之债,其中合法之债、自然之债受到民法的承认,不满足行政犯“二次违法性”的认定原则,应当排除在高利贷概念涵摄的范围之外。综合考虑我国的立法传统与刑法内部罪名之间的协调,以年利率36%作为认定高利贷的利率标准最为适宜。高利贷的认定还应当坚持社会危害性标准,排除数额微小的借贷和近亲属间的借贷。

The 11th Amendment to Criminal Law newly established the crime of collecting illegal debts,which includes collection of usury with violence behavior.But there is no definite standard of usury in criminal law,which may lead to an abuse of this crime.Debts,according to its legal nature,can be divided into legal obligation,natural obligation,and illegal obligation,among which legal debt and natural debt are recognized by civil law,which do not meet the cognizance principle of"secondary illegality"of administrative crime and should be excluded from the scope of usury concept.Considering our country’s legislation tradition and the coordination between the different terms in criminal law,we suggest 36% annual interest rate should be the standard of usury.Furthermore,the behavior regarded as a crime should be seriously pestilent.We need exclude the loans of small amount and loans between close relatives form usury.