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Routine lending is a combination of traditional usury and other illegal activities, with the characteristics of intelligence, organization and profit-chasing, and its behavior forms include fraudulent acquisition of wealth, debt collection, etc., with the aim of illegally taking possession of property. Routine lending is an abstract criminological concept through the inductive analysis of a large number of cases, which includes a series of fraudulent acts, but the specific criminal acts need to be determined according to the composition of various property crimes in the criminal law, and do not necessarily constitute the crime of fraud. Therefore, the concept of fraudulent lending cannot be used as a substitute for statutory crimes, and it still needs to be specifically determined in accordance with the provisions of the law.
China's system of enacting laws and regulations on routine loans has gone through a process of starting from scratch and from coarse to detailed, providing a solid legal foundation for effectively cracking down on this illegal and criminal act. Since September 2016, when Shanghai destroyed the country's first "routine loan" criminal gang, similar cases have spread rapidly across the country. In 2017, Shanghai issued the Opinions on the Handling of Criminal Cases of "Fraudulent Loans" for the first time in 2017, providing judicial guidance. In 2019, the Opinions on Several Issues Concerning the Handling of Criminal Cases of "Routine Loans" included "routine loans" for the first time in the provisions of the national judicial level. In 2020, the Criminal Law Amendment (11) added the crime of collecting illegal debts, filling the relevant legal gap.
There are three different views on the nature of routine lending. One view is that loan sharks are variations of loan sharks, and although they are similar in appearance, they have different ways of obtaining benefits, with loan sharks through high interest rates and loan loans by infringing on other people's property. Another view is that routine lending is a variation of private lending. The third view is that the essence of fraudulent lending is a crime, and it is linked to the crime of fraud. Whether it is the mutation of usury or the mutation of private lending, there is a fundamental difference between routine lending and these two. As for the view that fraudulent lending is regarded as a crime, it lacks comprehensiveness, and China's criminal law does not list fraudulent lending as an independent crime.
At the macro level, fraudulent lending can be divided into illegal acts and criminal acts, as well as other criminal acts derived from fraudulent loans. From a micro point of view, the punishment for the crime of fraudulent lending should be focused on"Routines"It's not"Loans"According to its development order, it can be divided into debt setting type and creditor's right realization type. Since fraudulent lending is not explicitly defined as a crime in China's criminal law, it should not be regarded as a crime by default. At the macro level, routine loans should be divided into two categories: illegal acts and criminal acts, and at the micro level, they should be classified according to the way of infringement of creditor's rights and debts, which is consistent with the intersection of civil and criminal characteristics of routine loans.
Some people advocate classifying the crime of "fraudulent loans" as a crime of embezzlement of property. The criminal suspect or defendant objectively illegally takes possession of the victim's property through various means, such as trapping, violence or scoundrels. Subjectively, they did not have a clear intention of seeking interest through private lending or usury. Compared with traditional fraud or extortion, the crime of "fraudulent loans" is often only more ingenious in terms of criminal means, but there is no obvious difference in nature. However, the crime of "routine loans" is not an independent crime, but more like a combination of the characteristics of multiple criminal acts. Guilt and innocence should be judged on the basis of whether the conduct meets the constitutive elements of a specific crime, rather than simply generalizing.
The "routine loan" case is a typical civil and criminal intersecting case, which contains two levels: substantive and procedural. At the substantive level, it is necessary to clearly distinguish between the illegal act of "routine lending" and criminal acts. What kind of civil violation is determined to be a criminal offense is judged according to the dual structure of "civil illegality + punishable illegality = criminal illegality". At the procedural level, if there is a clear distinction between the illegal and criminal "routine loans", the trial should be conducted in accordance with the corresponding procedures, and there is no question of priority; If a clear distinction is not yet possible, the principle of parallel should be maintained.
The peculiarity of the crime of "fraudulent lending" is that the loan contract appears to be legal on the surface, but in fact it is an infringement by the lender for the purpose of illegal possession. In the early days of such crimes, the public security organs were hesitant to take action for fear of interfering with private lending, which led to the rampant use of such crimes throughout the country. Only acts that are in substance in violation of civil law should be subject to criminal law. However, the crime of "routine loans" is a false competition, which excludes the loan contract that is legal on the outside, and its essence is to cover up the infringement of the borrower's property with a civil legal relationship, which is punishable and illegal, and there is no illegal obstructive reason, and should be criminally punished.
As a new type of illegal financial activity, the complexity and concealment of fraudulent lending have brought many challenges to the regulation of law and social governance. Distinguishing between the crime and the non-crime of fraudulent lending requires not only the continuous improvement and clarification of legal norms, but also the precise judgment and efficient enforcement in judicial practice. Only through the dual efforts of legislation and the judiciary can we effectively curb the criminal activities of fraudulent loans, protect the healthy development of the financial market, and maintain the stability of the social and economic order.