合意型“套路贷”行为的类型区分与司法评价

Differentiation of Types and Jjudicial Evaluation of Consensual "Arbitrage Loan" Behavior

对于被害人明知套路而选择配合的合意型“套路贷”行为,司法实践常认定为诈骗罪。但通过对此行为的深入分析,发现该行为其实包括合意“确权”和非法“索债”两个阶段,不能因为“确权”行为带有欺骗性而径直得出合意型“套路贷”行为均成立犯罪的结论。合意型“套路贷”行为是否成立犯罪判断的关键,不在于“确权”行为,而在于“索债”行为或者“确权”+“索债”复合行为。因此,在评判合意型“套路贷”行为性质时,应先依据“一般索债”、“诉讼索债”、“暴力索债”等类型特征进行考查,再结合“确权”行为的欺骗性与明知性进行“过程+结果”判断。事实上,实践中合意型“套路贷”行为在行为性质和类型上,可能存在民事欺诈,也可能构成诈骗罪,需要从类型化分析的视角予以审判。

In judicial practice, the consensual "Arbitrage Loan" behavior, which the victim knows and cooperate with, is often identified as a crime of fraud. However, through in-depth analysis of this behavior, it is found that the behavior actually includes two stages of consensual "right confirmation" and illegal "debt-claim", and it cannot be concluded that the consensual "Arbitrage Loan" behavior is a crime as the "right confirmation" behavior is deceptive. The key to judge whether the consensual "Arbitrage Loan" behavior is established lies not in the "right confirmation" but in the "debt-claim" or both. Therefore, when judging the nature of the consensual "Arbitrage Loan" behavior, we should first examine the characteristics of "general debt claim", "litigation debt claim", "violent debt claim" and so on, and then make the final judgment based on the deception and knowability of "right confirmation" behavior. Actually, in practice there may be civil fraud and it may also constitute a crime of fraud in terms of the nature and type of behavior, which needs to be tried from the perspective of typology analysis.