Ni essence: Financial crime case is effective plead, wide plead of crime of finance of strong attorney office and research center researcher
Usurious, it is folk actually leasehold in a more special kind, special place depends on, usurious accrual is the photograph is leasehold to common folk want tall, but after all more or less accrual just is usurious?
Came on stage 2015 " top people court about trying statute of comfortable use of civilian leasehold case the regulation of a certain number of problems " in clear, the interest rate that maintains leasehold and bilateral agreement exceeds annual interest to lead the partial interest of 36% to disable.
From this, a lot of people are very much even the lawyer thinks accrual exceeds annual interest to lead the circumstance of 36% to fall, just belong to usurious.
This one viewpoint is wrong apparently very.
Accrual exceeds annual interest to lead 24% , belong to usurious
The basis released 2002 " the announcement that Chinese people bank attacks usurious action about banning subterranean old-style Chinese private bank to reach " in, clear " civilian individual is leasehold interest rate talks things over by leasehold both sides affirmatory, but the financial orgnaization the corresponding period that the interest rate that both sides negotiates must not exceed Chinese people bank to announce, with class loan interest rate (do not contain float) 4 times. Exceed afore-mentioned levels, should limit for usury leasehold behavior. Should limit for usury leasehold behavior..
Accordingly, accrual exceeds 4 times what annual interest leads, belong to usurious. But why does the annual interest of melt into of 4 times direct quantity that the author leads this annual interest lead 24% and rather than 36% ?
About " annual interest is led 4 times " regulation, inchoate those who appeared 1991 to release " a certain number of opinions that hear leasehold case about people court " in, this " opinion " clear folk's leasehold interest rate is OK and appropriate the interest rate of prep above bank, court of each district people but the actual condition according to our region specific control, but highest must not exceed a bank of congener loan interest rate fourfold (include interest rate to be counted originally) . Exceed this limit, the interest that exceeds a share does not grant to protect.
Because interest rate of annual loan of bank the corresponding period is floating, according to the investigation of the loan interest rate to calendar year, discovery basically the loan interest rate of the bank all drifts up and down in 5%-7% . And the stability in hearing case of civilian leasehold dispute to raise a court to be in, 2015, top people court was released " about hearing civilian leasehold case applicable law the regulation of a certain number of problems " , make clear directly " the interest rate that leasehold both sides agrees did not exceed annual interest to lead 24% , lender requests borrower to pay interest according to conventional interest rate, people court should grant to support. The interest rate that leasehold both sides agrees exceeds annual interest to lead 36% , the accrual agreement that exceeds a share is invalid. Borrower requests lender to return the interest that returns prepaid to exceed annual interest to lead 36% parts, people court should grant to support. People court should grant to support..
Can see from this, usurious it is to show accrual exceeds annual interest to lead the folk of 24% leasehold.
Extend usurious what law consequence to have after all?
Pure extend with own reserves usurious behavior, it is to pass civil code to undertake restraining.
The regulation is narrated before the basis, not all usurious accrual is invalid surely about, that is to say, accrual of civilian leasehold agreement exceeds the partial interest of 24% not to grant to protect, conventional accrual disables for the ability of 36% above. More than 24% under the circumstance of 36% , although do not grant to protect, but borrower gives pay regard as donative, must not ask to return still; Exceed the interest of 36% , borrower gives Fu Zeke with so undeserved that ask lender is returned for benefit still.
Accordingly, folk of not all high interest is leasehold should by control, exceed reasonable limit only (those who exceed interest rate of loan of the corresponding period is fourfold, namely 24% ) have interest is leasehold just may cause financial order disorder and other society harm, ability should be restrained.
The profession is put borrow a person, do not form manage a hardship illegally
Alleged profession is put borrow a person, it is to point to it is a purpose in order to seek profits, with extending usurious form nots only to the society fund of calm object loan, with this obtain high specified number the unit of illegal income or individual.
Likewise a lot of people think, the profession is put borrow a person, form manage a hardship illegally.
This was to be immersed in error of a thinking: Usury is put borrowing behavior itself is a kind " break the law " behavior () , profit with this again, this sort is like the action that manage is not approved, form so manage a hardship illegally.
Can say, afore-mentioned thinking are the acknowledge that a lot of people are partial lawyer even.
Actually, basis " the give an official that general office of Chinese people bank decides issue of character of law of act of object loan fund about notting only to the society with usurious form " (silver handles case [2001]283 date) in, put the profession borrow a person to not only to the society with usurious form the action that decides object loan fund, maintain borrow money to extend illegally behavior.
Extend illegally loan and folk's leasehold distinction depends on, civilian individual is leasehold should be a kind of capital that needs because of production, life between the individual adjusts behavior, namely individual with its oneself the own reserves lend of lawful income gives an another specific person, the purpose is the help solves borrow person need of temporarily production, life, lender gets certain interest get one's own back for this, but lender does not serve as this commonly seek profit regularly method. If interest rate exceeds top people court " a certain number of opinions that hear leasehold case about people court " in formulary bank is congener of loan interest rate fourfold, the interest that exceeds a share does not grant to protect, but conduct character still is civilian individual leasehold, is not " illegal finance orgnaization and activity of illegal banking business suppress idea " in those who indicate is illegal extend loan.
Law of and rather than provides loan is to point to: Superintend sectional approval without finance, it is a purpose in order to seek profits, to not specific object loan fund, with this obtain high specified number the behavior of illegal income. Extend illegally the action principal part of loan can be an unit also can be an individual, its behavior characteristic is without having right the branch is approved, without lawful management finance business qualification, regular the ground to not specific unit or individual loan fund, general pen counts loan money amount of much, accumulative total is large, duration of accumulative total of many leasehold behavior is longer, activity of business of a kind of when go up objectively to already was formed illegal banking.
Of course, can a lot of people think the profession is put those who borrow a person is illegal extend loan behavior is formed manage a hardship illegally, because,the likelihood is, put in the guilty legal precedent of few part.
Carry the search of counterproposal exemple, discovery, court of intermediate people of city of Jiangsu province Changzhou (2011) constant punishment eventually the word rules the 13rd number, think appellant Chu Mou runs loan business without the license and to social community high interest is put borrow, the clue is particularly serious, its behavior already was formed manage a hardship illegally.
However this is the legal precedent before 2012.
2012, guangdong province tall courtyard extends in the light of the profession usurious behavior ask for instructions is highest courtyard, top people court is managed illegally the spring about He Weiguang of the accused person, Zhang Yong make clear in the give an official of the case, extend usurious behavior has certain society to endanger a gender, but whether does this kind of behavior belong to what criminal law sets the 225th times " manage action illegally of order of other and serious disturbed market " , legislative explanation and judicatory explain Shang Moming sets truly related, reason is right the action of the person such as spring of He Weiguang, Zhang Yong is unfavorable punish with managing a blame illegally to conviction.
Because the person such as spring of He Weiguang, Zhang Yong is in order to extend usurious for course of study, accordingly, the highest courtyard answer 2012, mean the castigatory object that manages a hardship illegally, do not include in order to extend usurious the behavior that is course of study.
Of the same age, guangdong saves tall courtyard to release " summary of informal discussion of work of trial of crime of economy of complete province court " specific provision " usury puts borrowed action, ought not to with managing a hardship illegally punish " .
Not come singly but in pairs, "Snow of Hubei couplet friendship, Wuhan is being managed illegally case " , the answer of top people court is likewise " usurious do not enter a blame " , the give an official that Hubei visits senior people court also is " usury puts borrowed action, do not form manage a hardship illegally " .
This is why, from 2012 up to now, extend about the profession usurious behavior, give without corresponding legal precedent blame. The legal precedent that is moved to send to the court repeatedly even is very few.
The is moved to send to the court legal precedent that can check exclusively, also be innocent legal precedent.
Fujian Province the Fuzhou City is intermediate people court (2014) banyan punishment eventually word the 741st, first instance is formed at was being sentenced 2013 manage a hardship illegally, 2 careful are direct change the original sentence is innocent. The court thinks: Tang Mou armour concerns as the leasehold law between individual and borrower, belong to folk leasehold, answer to be adjusted by civil law impact.
Accordingly, no matter be,look from instantly legal precedent, still look from legal provision, the profession is put borrow average per capita to be not formed manage a hardship illegally.
The profession is put those who borrow a person is illegal extend loan behavior, give by Chinese people bank ban
Extend illegally loan, attribute activity of illegal banking business.
Basis " illegal finance orgnaization and activity of illegal banking business suppress idea (2011 edit) " requirement, illegal finance orgnaization and activity of illegal banking business are given by Chinese people bank ban. Illegal finance orgnaization establishs the ground the local people government of virgin soil of hair of activity of business of illegal perhaps banking, responsible organization, harmonious, supervise with ban concerned work.
