金融刑法中的抑制模式

On the Mode of Financial Repression in Financial Criminal Law

我国金融体制与金融市场一直深受金融抑制模式的影响,这一模式“重管控而轻自律、重秩序而轻权益”的特点不但导致了我国金融市场自律机制受限、民间资本融资渠道受阻,同时也塑造了我国金融刑法以维持金融秩序为核心的基本立场,进而造成了我国金融刑事立法与司法领域中规则设定与适用的模糊不清,并由此引发了刑法与金融法的难以匹配、犯罪化标准的单一设定、罪名适用范围的不当扩张及兜底条款适用的泛滥化等诸多弊端。为了克服上述弊端,在市场经济体制改革不断深化的背景下,以注册制改革为契机,在我国金融刑事领域中引入“规制缓和”理念,完善金融市场自律机制,加强市场主体金融权益保护,通过金融刑法机能观的调整、金融刑事立法模式的转变、司法适用的理性化及预防性措施的整备等具体途径,对我国金融刑法的规制立场进行重塑,实现从“压制型”到“自治型”金融刑法的应然转向。

China’s financial system and financial market have been deeply affected by the financial repression model, the characteristics of this model of “emphasis on management and control rather than self-discipline, and order rather than rights and interests” have not only led to the limitation of the selfdiscipline mechanism of China’s financial market and the obstruction of private capital financing channels, but also shaped China’s financial criminal law with maintaining financial order as the core basic. The position has caused the ambiguity of the setting and application of rules in the financial criminal legislation and judicial field of our country, which has caused the contradiction between the criminal law and the financial law, the single standard of criminalization, the improper expansion of the scope of application of the crime, and the indiscretion of the provisions. In order to overcome the above shortcomings, under the background of the continuous deepening of the market economy system reform, taking the registration system reform as an opportunity, introduce and apply the concept of “regulation mitigation” in China’s financial criminal field, to perfect the financial market self-discipline mechanism, and strengthen the protection of the financial rights of market entities. Reshape the regulatory position of China’s financial criminal law and realize the transformation from “repressive” to the “autonomous” financial criminal lawproper turn, through the adjustment of the functional view of financial criminal law, the transformation of financial criminal legislation model, the rationalization of judicial application and the preparation of preventive measures, etc.