P2P网贷平台债权转让行为的刑法定性

How to Incriminate the Behavior of the Credit Right Transfer on the P2P Online Platform

P2P网贷平台转让债权本属于民间借贷行为,但在实际操作过程中平台大多实质性地参与借贷法律关系,对债权金额与期限进行拆分,由此引发非法集资犯罪风险。债权转让行为的刑法定性应当以类型化为基础,将债权转让分为纯中介型债权转让、债权归集型转让和虚构债权转让三种类型,再综合考量资金池的形成原因、债权拆分行为的基本性质等关键因素。纯中介型债权转让模式中平台并未脱离信息中介机构的定位,不应作为犯罪处理;债权归集型转让中平台拆分、转让未到期债权的行为不符合非法吸收公众存款罪的构成要件,而转让逾期债权则应具体判断;虚构债权进行转让的,构成集资诈骗罪。

The credit right transfer by P2P online platforms is originally an act of private loaning,but in the actual operation,the platform actually gets involved in the legal loaning relationship and spliting the loan amount and term of credit rights,which may lead to the risks of illegal fund-raising crimes.How to incriminate the behavior of the credit right transfer should be based on its classification,and the credit right transfer can be divided into three types:pure intermediary credit right transfer,collected credit right transfer and fictitious credit right transfer.Moreover,the reasons for the formation of fund pools,the basic nature of splitting creditor's rights and other key factors should be taken into comprehensive consideration.When the platform engaged in pure intermediary credit transfer does not deviate from an information intermediary agency,it should not be treated as involvement in crime.As to the collected credit right transfer,the split of the platform and the transfer of unexpired credit rights do not meet the constituent elements of the crime of illegally absorbing public deposits.Furthermore,the overdue credit right transfer should be judged by its real circumstances.Finally,the fictitious credit right transfer constitutes fund-raising fraud.