作业代写：Criminal law on online lending

下面为大家整理一篇优秀的essay代写范文- Criminal law on online lending，供大家参考学习，这篇论文讨论了关于网络借贷的刑法。网络借贷是网络化的民间借贷，相对于传统的线下，民间借贷网络借贷拥有较大的借贷优势。互联网的开放性可以为网络借贷提供更为广泛的客户、更加便捷的信息共享平台，同时网络借贷存在诸多风险与问题。网络借贷中滋生的一些新型行为本质上可以落在原有刑法中的某些罪名的犯罪圈中，此时刑法应该介入。

Network lending is the network of private lending, which has more advantages in capital lending by virtue of the openness of the Internet. Meanwhile, problems existing in private lending have also been magnified in network lending. The law should not remain silent when online lending platforms illegally provide lending services beyond the service scope of their "intermediary" platforms. Tolerance requirement of the criminal law in criminal law field in other law can't regulate when required by the intervention and the principle of a legally prescribed punishment for a clear stipulation for crime may apply, criminal law regulation for restraint in the network of borrowing. However, network lending is a new type of private lending, and the regulation means of criminal law on illegal private lending can be applied to network lending. The illegal absorption of public deposits in online lending should be regulated by the crime of article 176 of the criminal law.

Network lending is a new way of borrowing, which is the subversion of traditional private lending or the extension and development of traditional lending. Traditional private lending refers to offline transactions, while online lending breaks the limitation of offline transactions and expands transactions into virtual networks. The lending method through the network platform is no longer limited to a certain region or a certain field of borrowing and lending, and its influence scope is any social individual or organization that has access to the network terminal. There is no doubt that the result of the development of information technology has greatly expanded the scope of the "main body" of the borrowers and lenders, but the risks in the virtual world of the network cannot be ignored. Network borrowing is online transaction, both parties do not need to "face to face", once the order is placed, the money for delivery after completion of one party break for the contracting counterparty will lead to economic losses, the inevitable difficulties and network trade is difficult to find real transaction both sides. If a dispute is brought to court, the validity of the contract of online loan treaty and the evidence of various kinds of loan, its legal effect cannot be fully recognized under the existing legal framework. This brings huge risks to the legal liability of the breaching party. At the same time, online lending is a "grey area", and online lending platforms will face legal challenges if they exceed the legal business scope. The provisions in article 176 of the criminal law that the crime of illegal absorb public deposits, it is regulation of illegal absorb public deposits, facing the development of The Times, the law should make corresponding with progress, for network illegal absorbing public deposits behavior of borrowing, this crime, of course, the application of the force. The law is dead, but the application and interpretation of it should be alive. This article through the analysis of the various characteristics and problems of lending to emerging means, exploring how the crime of illegal absorb public deposits in a new way of borrowing is applied, to keep pace with The Times of the criminal law the ability to deal with problems, resolve social risks.

Borrowing money is Shared a form of reasonable distribution of funds, it is abundant to people by "borrowed" lend capital demanders, the extra money and the shortage of funds is through "borrow" access to their own needs a lot of money. Both lenders and borrowers meet their own needs by borrowing, which also drives economic circulation and even promotes economic development to a certain extent. Traditional way of borrowing have official folk lending and borrowing, and official borrowing refers to the financial institutions that have legal deposit-taking, lending money permissions of a bank or other non-bank financial institutions lending activity; Private lending in August 6, 2015, issued by the supreme people's court of the supreme people's court on some issues of applicable law in private lending cases regulations before has no corresponding laws and regulations clearly regulate private lending activities, make the folk lending in the change of legal and illegal. After the promulgation of the regulations, there was a normative legal basis for private lending. However, compared with offline private lending, online lending still faces great legal difficulties.

Online Internet lending is carried out by taking advantage of the extensibility and accessibility of the Internet. It is hard to imagine the popularity of the Internet in the information age. Of course, there is a population base problem, but the reality of China's Internet power cannot be denied. The life of citizens in the Internet era cannot be separated from the Internet. Mobile phones and other portable and convenient user terminals are popularized. Ordinary people have access to the Internet very cheaply and use it to communicate with their lives at a deeper level: chatting online, shopping online, ordering food online. Network lending is also conform to the trend, in 2015, in a "double a" alibaba turnover of 91.2 billion yuan a day, jingdong mall turnover also hit a record high, alibaba's "ants spend bai" and "jingdong ious of jingdong mall also for lending to a network platform. In a society full of various online lending platforms, the relevant laws and regulations are not yet perfect, which has caused many problems to be considered. Internet lending is essentially private lending, but it USES Internet technology. It is also because of the advantages of the network that online lending has more negative effects than traditional offline lending activities. The illegal and criminal characteristics hidden in offline private lending have not been overcome by online lending. On the contrary, online lending has "inflated" the illegal and criminal nature of offline private lending. The advantages of rapid spread of information, wide coverage and high efficiency of absorbing and releasing funds in online lending also increase the financial risk when funds break down. Once suction gold man or network platform defaults even malicious to absorb funds, its damage will be collapsed, affected areas is not in an area but quite a part of the citizens across the country.

Criminal law is the backing law and the security law. Before other laws fail to regulate relevant illegal behaviors, due restraint should be maintained to avoid the expansion and generalization of criminal law. The tolerance requirement of the criminal law in the criminal law to keep the spirit of tolerance, as the earliest define the connotation of the austerity of criminal law theory hirano dragon said, a professor of the austerity of criminal law refers to the criminal law "complementary, not integrity and forgiveness". The supplementary allegation criminal law is the supplementary law and the backing law of other departmental laws. Only when other departmental laws are "impotent" and "leaky" can the criminal law be entered. Imperfection in a certain sense also belong to the scope of complementary, because criminal law regulating the behavior of other law cannot specification only, when other departments can effectively regulate silence not to interfere in criminal law, so that criminal law to regulate the behavior of the scope is limited and incomplete; Tolerance seems to be the sublimation of the first two connotations. Criminal law should reflect human nature and have the humanitarian spirit to restrain the criminal circle. The modesty of the criminal law requires that the criminal law is not a positive advance in the face of harmful behavior but a calm and limited attack. As some scholars said: China's criminal law scholars on the basic meaning of Yu Qian sex suppression is consistent, that is to limit the scope of criminal law function and the necessity of applicable criminal law, and emphasizes the last resort of criminal law. There is nothing wrong with affirming the spirit of modesty in criminal law, but modesty in criminal law is not a universal medicine to cure all kinds of diseases. If the modesty of criminal law is extended to the whole field of criminal law, it shows a trend of non-criminal law, and China's national conditions show that the need for criminalization is stronger than that of non-criminal law. Especially in the field of financial crimes, the system of the criminal law is not strict enough in our country, legislation has some defects, if blindly advocate the austerity of criminal law, carry out the crime, will indulge in the field of financial crime, causing irreversible damage to the country's financial order, and even bring social problem such as local financial collapse. Thus, at the same time in the restraint of criminal law in network lending should be within the existing criminal law system of criminal behavior effectively, it also conforms to the ChuHuai plant "close and lax" advocated by professor of criminal law. To face the austerity of criminal law "is a must possess the character of the criminal law, the austerity of carry out really helps to solve some problems, but using the austerity of sex is the root cause of many theoretical and practical problems exist not yet formed the system of the system, will solve the problem of modest hopes system, it is the tolerance loaded the unbearable weight". Therefore, the criminal law should do something when it is suspected of criminal ACTS in online lending.

Article 3 of the criminal law stipulates: "if the law expressly provides for a criminal act, it shall be convicted and punished in accordance with the law; If the law does not expressly provide for a criminal act, he shall not be convicted or punished." This provision is the principle of legally prescribed punishment for a specific provision, some kind of criminal behavior by law, criminal law must be in a certain crime is criminal law definitely prescribes the premise, otherwise "law without crime, shall not be convicted and punished". The term "Internet lending" is not stipulated in all the provisions of the criminal law. It belongs to "the law is not explicitly stipulated". The answer is no. The essence of online lending is private lending, but it only USES the virtual environment of the Internet to complete traditional lending behavior through new means. Network borrowing of borrowing platform need to obtain state licensing qualification to lending services on the Internet, but also the platform can only carry out debt service must not exceed the scope of its platform to provide other services. Once the network lending platform exceeds its permitted business service scope, it must face the regulation of law. However, its services beyond the scope are usually the illegal lending of funds or the illegal absorption of funds, which has entered the criminal circle of the criminal law. Regulation of article 176 of the criminal law crime of illegal absorb public deposits is illegal absorption or disguised absorb public deposits, and article 174 of the crime of illegal financial institutions to set up rules and regulations without the approval of the state organs of the establishment of financial institutions without authorization. Was implicated in the crime of before and after relationship or the means of illegal absorb public deposits institution or an individual when absorbing public deposits, usually through an externalization of financial institutions, and by the financial institutions to obtain the trust of the depositors and borrowers, in particular cases based on the results implicated relation or behavior, absorption means behavior considerations can add illegal behavior factors of set up the crime of financial institutions to the act of illegal absorbing public deposits. Therefore, the network lending is different from offline folk lending, but the essence of private lending behavior means that exist in the folk lending crime also exists in network lending, with the relevant clauses in the criminal law to crack down on illegal network borrowing, not to deviate from the principle of a legally prescribed punishment, but the implement principle of a legally prescribed punishment. Therefore, the legal principle of crime and punishment also requires the criminal law in the network lending.

The criminal law should have some action in network lending, but not arbitrarily. The principle of legality requires that the penal regulations of a certain act should be subject to the express provisions of the law, and the last means of the criminal law also requires that the criminal law should be "relegated to the second line". This necessarily requires the criminal law to restrain its criminal circle and regulate criminal behavior reasonably and reasonably. Network lending is a new form of private lending, the folk lending specialty was inherited by lending to network crime, and the effect of borrowing in the Internet platform has been expanded, the consequences are less predictability. Network lending risk of crime requires the intervention of criminal law, and criminal law is the restraint of intervention is to explain the perspective of the theory of network borrowing that exist in the crime into the traditional folk lending may involve types of crime. To be specific, the crime of illegal absorption of public deposits stipulated in article 176 of the criminal law is used to regulate the illegal absorption of public deposits in online lending. Will online lending disrupt financial order? In other words, does the illegal absorption of public deposits in online lending infringe the legal interests protected by article 176 of the criminal law? Lending to network platform in beyond the scope of legal services independent fund lending business, its behavior characteristics conform to the stipulations of the "interpretation" of the four should be convicted and punished for illegal absorbing public deposits crimes. The behavior conforms to the type of behavior regulated by the articles, which inevitably violates the legal interests protected by the regulations. Detailed, a behavior conforms to the requirements of a crime of criminal law behavior characteristics, behavior itself is a "legitimate" namely, should conform to the constitutive factors, and the constitutive requirements of conformity itself will encompass the illegality and duty, namely "constitutive requirements is illegal, duty when punishment behavior typed in law, therefore, constitutive requirements is not only the type of violation, and type of responsibility. As long as it is an act in accordance with the constitution, it can be presumed to be both illegal and liable. So the network behavior of borrowing shall meet the requirements of the "explanation" and had the constitutive requirements of crime of illegal absorb public deposits, in specific cases if no other illegal deterrent for such as "not publicity to the society, the relatives and friends of a specific object or the unit interior absorption funds, do not belong to the illegal absorption or disguised absorb public deposits", it should be regulated with crime of illegal absorb public deposits.

Network lending is a network of private lending. Compared with the traditional offline lending, the network lending has a greater lending advantage. The openness of the Internet can provide a wider range of customers and a more convenient information sharing platform for online lending. At the same time, there are many risks and problems in online lending. Facing the risks and problems in network lending, the law cannot remain silent. Under the existing legal framework, criminal law can effectively regulate all the illegal and criminal problems in network lending. The tolerance of sex in the criminal law and principle of a legally prescribed punishment for a specified requirements of the criminal law in the absence of prohibited, effectively regulation without intervention in other laws, and encourage some of the new behavior in network borrowing in essence can be some of the existing criminal law in the circle of criminal charges, criminal law, of course, can intervene at this time. Article 176 of the criminal law crime of illegal absorb public deposits for illegal private lending regulation has the rationality, legitimacy, also applies to network borrowing is illegal absorbing public deposits in China. Lending to specific network platform in specific cases if there is a four characteristics of "interpretation" of the regulation, no other illegal deterrent purposes, shall be based on the crime of illegal deposits regulation network illegal borrowing of borrowing.

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