民间高利贷的泛刑法分析

近年来,民间高利贷被作为非法经营罪追究刑事责任的判例频频出现。究其原由,源于中国人民银行办公厅与最高人民法院刑事审判第二庭就武汉的涂汉江案所为的两个复函。然而,这两个复函关于民间高利贷属于国务院《非法金融机构和非法金融业务活动取缔办法》所列非法金融行为的解释均属无权解释,因此,有关民间高利贷构成非法经营罪的所有判例,均无法律依据。事实上,在现有法律框架下,民间高利贷因不违反任何法律与行政法规而不具有构成非法经营罪的非法性要件。同时,民间高利贷虽有伴生犯罪之弊,但其更有产生的必然性,也有存在的合理性,因此,对其也不应通过修改刑法而将其入罪。

A General Analysis of Criminal Law Dealing with Personal Loans Having Usurious Interest Rates Attached

In recent years,cases keep arising where criminal law is invoked to deal with personal loans that have usurious interest attached,the plausibility of which results from the two replies made respectively by the Central Office of the People’s Bank of China and the No.2 Criminal Tribunal of the People’s Supreme Court to respond the problems in Tu Han-jiang in Wuhan.However,the two replies are indeed ultra vires that take personal loans that have usurious interest attached as illegal financing activities prohibited in the State Council’s Rules of Wiping out Illegal Financing Institutions and Financing Transactions.As such,all the decided cases where personal loans that had usurious interest attached were held illegal transactions are of no legal basis.Indeed,in the framework of existing laws,for no violation occurs of any laws or statutory instruments,personal loans that have usurious interest attached do not meet the requirements of the offense of illegal transactions.Furthermore,personal loans that have usurious interest attached,though with offences occasionally keeping company,have their own necessity and nationality,as such should not be defined bluntly as an offence by way of modification of the criminal law.