Recently, the whole nation is swept black do those who released procuratorate of top people court, top people, the Ministry of Public Security, judiciary to combine print and distribute " about dealing with " cover a road to borrow " criminal case the opinion of a certain number of problems " . In recent years, "Cover a road to borrow " the case is sent more quite, and often involve crime of black vicious power. Sweep to last to be begun deep black except evil special accuse and denounce at a meeting, accurate discriminate and lawfully severity penalizes " cover a road to borrow " illegal criminal, small today make up take everybody to be studied together, look after all is what " cover a road to borrow " ? "Cover a road to borrow " " cover a region " what is there?
[link] of print and distribute of combination of procuratorate of top people court, top people, the Ministry of Public Security, judiciary " about dealing with " cover a road to borrow " criminal case the opinion of a certain number of problems "
About dealing with " cover a road to borrow " criminal case
The opinion of a certain number of problems
Sweep to last to be begun deep black except evil special accuse and denounce at a meeting, accurate discriminate and lawfully severity penalizes " cover a road to borrow " illegal criminal, the basis is court of explanation of procedural law of criminal law, criminal, concerned judicatory and top people, highest people procuratorate, the Ministry of Public Security, judiciary " about handling case of crime of black vicious power the directive opinion of a certain number of problems " the regulation that waits for normative sex file, be opposite now deal with " cover a road to borrow " a certain number of problems offer criminal case as follows opinion:
One, accurate hold " cover a road to borrow " as leasehold as folk distinction
1. " cover a road to borrow " , it is right it is a purpose with detinue, folk of make use of's leasehold name, prevail on or force the injured party to sign " leasehold " or covert " leasehold " " guaranty " " assure " wait for relevant agreement, add the means such as evidence of the leasehold amount, baleful production break a contact, wanton cognizance break a contact, reimbursement that destroy conceal to form debt of false creditor's rights through empty, and the generality appellation of the activity of relevant illegal crime that lawsuit of have the aid of, arbitral, notarization perhaps uses property of the injured party of violent, menace and other measure detinue.
2. " cover a road to borrow " the essence of existence of civil and leasehold relation that meaning autonomy is based on between main body and forms with equality is distinguished, folk's leasehold lender is to expire to call in according to the content that the agreement agrees capital gets interest, do not have the objective of detinue other property, also won't be in sign, empty is carried out to increase leasehold amount in performing leasehold agreement procedure, make give phonily pay the trace, baleful production break a contact, wanton cognizance break a contact, reimbursement that destroy conceal the behavior such as evidence.
In judicatory practice, ought to notice to demand repayment illegally caused case and " cover a road to borrow " the distinction of the case, person of guilty suspect, the accused does not have detinue objective, also did not use " cover a region " form debt of false creditor's rights with borrower, should not regard as " cover a road to borrow " . Because use violent, menace and other measure to demand payment of a debt forcibly,make crime, ought to conviction according to particular case fact punishment.
In 3. practice, "Cover a road to borrow " common crime gimmick and measure include but not be confined to is the following case:
(1) production folk leasehold false appearance. Person of guilty suspect, the accused often with " small finance company " " investment firm " " advisory company " " assure company " " the network is leasehold platform " wait for name to be publicized external, with low interest, without guaranty, without assure, draw borrow or lend money of the injured party fast loan for bait, then with " bail " " guild regulations " wait for the injured party of false reason prevail on to be based on wrong understanding to sign amount empty tall " leasehold " agreement or relevant agreement. Person of some guilty suspects, the accused still is met with the injured party the reason such as previous and leasehold break a contact, force the other side to sign amount empty tall " leasehold " agreement or relevant agreement.
(2) production capital walks along Zhang running water to wait to give phonily pay a fact. Person of guilty suspect, the accused according to empty tall " leasehold " consultative amount turns capital into account of the injured party, make already the trace of bank running water of the injured party of consign of will total borrow or lend money, take all sorts of steps subsequently will among them all or partial capital calls in, the injured party was not obtained actually or obtain completely " leasehold " the debt that shows on running water of agreement, bank.
(3) make break a promise intentionally wanton perhaps cognizance break a contact. Person of guilty suspect, the accused often is met wait for means in order to set barrier of trap of break a contact, production reimbursement, create beak a contract of the injured party intentionally, perhaps carry wanton cognizance break a promise, ask the injured party repays forcibly false debt.
(4) amount of baleful base fast loan. When the injured party is insolvent, the related company that person of some guilty suspects, the accused can arrange its place to belong to a company to perhaps be appointed, associated personnel repays for the injured party " loan " , the empty with then and larger specified number of subscription of autograph of the injured party is tall " leasehold " agreement or relevant agreement, plant through this " turn Chan Ping Zhang " " still borrow in order to borrow " means is ceaseless base is tall " debt " .
(5) use both hard and soft tactics " demand payment of a debt " . Did not repay in the injured party empty is tall " loan " below the circumstance, lawsuit of have the aid of of person of guilty suspect, the accused, arbitral, notarization perhaps uses violent, menace and other method to the injured party or the specific relation person of the injured party is asked for " debt " .
2, punish severely lawfully " cover a road to borrow " crime
4. is carried out " cover a road to borrow " in the process, did not use apparent violent minatory perhaps method, its behavior characteristic is from the expression on whole it is a purpose with detinue, pass dummy fact, conceal property of truth diddle the injured party, conviction with crime of fraud commonly punishment; Carry out to be in " cover a road to borrow " a variety of methods in the process are used, form imprison bilk, blackmail, illegally, affray of false suit, provoke, force to trade, rob, of a variety of crime such as staking, ought to according to particular case fact, divisional and different situation, the blame punishs according to criminal law and the compasses destiny that explain about judicatory or choose is in again.
5. much person is carried out jointly " cover a road to borrow " crime, main effect has in the crime that person of guilty suspect, the accused participates in in place, ought to maintain for prime culprit, be participated in to its or all crime assumes organization, commanding criminal responsibility; Have secondary or auxiliary effect, ought to maintain for accessary criminal.
Know perfectly well other to carry out " cover a road to borrow " crime, those who have one of the following state, with the accomplice punish of relevant crime, but the criminal law and judicatory explanation except that has a regulation additionally:
(1) the organization is sent " loan " information, advertisement, attract, introductory the injured party " loan " ;
(2) of the help such as date of card of bankroll, place, bank, Zhang, vehicle;
(3) sell, offer, the help gets citizen individual information;
(4) assistance makes Zhang record wait to give those who pay a fact phonily;
(5) assistance deals with notarization;
(6) assistance perhaps arbitrates with false fact to lodge a complaint;
(7) assistance is covered now, take now, conduction movables or praedial change the name of owner in a register, divert guilty earning and the profit that its generate;
(8) other the case that accords with collective crime regulation.
In afore-mentioned regulations " know perfectly well other to carry out ' cover a road to borrow ' crime " , the cognitive faculty that ought to join behavior person, mix toward frequency of experience, behavior already method, concern with what be the same as case person, the injured party, gain profit circumstance, whether Ceng Yin " cover a road to borrow " had sufferred whether punishment, intended avoid to investigate etc advocate objective element integration analysis.
6. is in maintain " cover a road to borrow " when guilty amount, ought to distinguish with civilian leasehold photograph, give from whole negatory evaluation, "Empty high debt " and with " accrual " " bail " " intermediary is expended " " the service is expended " " penalty due to breach of contract " wait for items to be committed a crime person of suspect, the accused the property of detinue, all answer plan into guilty amount.
Person of guilty suspect, the accused gives the principal that pays the victim actually number, not plan join guilty number.
Had begun to carry out " cover a road to borrow " , but because of what the reason did not prevail beyond the volition, the criminal law that can involve according to relevant accusation place, judicatory explains a provision, according to already began the property amount of detinue maintains attempted crime. Have accomplished offense already, have abortive again, part of guilty accomplished offense and abortive part part correspondence is different and legal of punishment extent, ought to decide to whether reduce punishment to abortive part first, define the legal punishment scope of abortive part correspondence, undertake comparative with the legal punishment extent of correspondence of accomplished offense part again, the choice punishs heavier legal punishment extent, and take into consideration the circumstances from heavy punishment; Both is in of extent of same measurement of penalty, with take into consideration the circumstances of guilty accomplished offense from heavy punishment.
Person of 7. crime suspect, the accused is carried out " cover a road to borrow " all property of illegal earning, ought to give pursue and wipe out perhaps instructs pay compensation for what one has unlawfully taken; To the lawful belongings of the injured party, ought to return in time still. Evidence proves is guilty suspect, the accused is carried out artificially " cover a road to borrow " and the capital that delivers to the injured party, after recouping loss of the injured party if have the rest, should give lawfully confiscate.
Person of guilty suspect, the accused already used the property of illegal earning at pay off debt, make over or install other right burden, those who have one of following state, ought to lawfully pursue and wipe out:
(1) the 3rd person is known perfectly well is illegal earning property and accept;
(2) free of the 3rd person is obtained or violate earning property with be being obtained under the price of the market apparently;
(3) the 3rd person perhaps violates guilty activity to acquire illegal earning property through illegal debt pay off;
(4) other ought to lawfully the case of pursue and wipe out.
8. with old people, minor, carry out in the school student, factitious boy or girl friend that loses labor ability " cover a road to borrow " , or because carry out " cover a road to borrow " create the victim or its are suicide of specific relation person, death, touched, to repay " debt " and of executive crime activity, outside explaining what have a regulation additionally except criminal law, judicatory, ought to take into consideration the circumstances from heavy punishment.
Holding to lawfully from punish severely place while, admit to admitting one's guilt punish, positive disgorge ill-gotten gains, genuine contrition perhaps has the other and legal, the accused person that drinks to punish a clue lightly surely, can lawfully from wide punishment.
9. to " cover a road to borrow " criminal, the specific accusation that ought to offend according to its, increase belongings punishment lawfully applicable strength. Accord with criminal law thirtieth of one of 7 regulations, can prohibit pursueing relevant profession lawfully.
3 people above is 10. carry out " cover a road to borrow " and relatively fixed crime organization of composition, ought to maintain for guilty group. Answer to make all crime punishment according to group place to first member.
Accord with black vicious power to maintain a level, ought to according to gangdom property organization, vicious power or group of vicious power crime is investigated, sue, adjudgement.
3, decide lawfully " cover a road to borrow " criminal case administer
11. " cover a road to borrow " guilty case is investigated by mechanism of guilty ground public security commonly, if reside put on record of mechanism of dwelling place public security by guilty suspect,investigate more appropriate, can reside put on record of mechanism of dwelling place public security to investigate by guilty suspect. Guilty ground includes criminality happening ground and guilty result to produce the ground.
"Criminality happening ground " include to be carry out " cover a road to borrow " the company seat that establishs, " leasehold " agreement or relevant agreement are signed demand repayment the ground, illegally behavior executive ground, to carry out " cover a road to borrow " and to institute proceedings, arbitration, notarial get case court of justice, and " cover a road to borrow " the preliminary ground of behavior, begin ground of the ground, by way of, end ground to wait.
"Guilty result produces the ground " include illegal earning property pay to obtain the ground, conceal ground, move ground, use ground, sale ground the ground, actually to wait.
Outside occupying a dwelling place except suspect of guilty ground, crime, mechanism of other place public security is twisted to the citizen send, report a case to the security authorities, charge, inform against or guilty suspect confesses his crime " cover a road to borrow " guilty case, ought to accept instantly, via examining those who think to have guilty fact, move send have processing of jurisdictional public security mechanism.
Black vicious power carries out " cover a road to borrow " guilty case, run gangdom property organization, vicious power by detect or the public security mechanism of case of group of vicious power crime undertakes investigation.
12. has one of following state, mechanism of concerned public security can be inside its duty limits and case investigate:
(1) one person commits several crimes;
(2) of collective crime;
(3) the guilty suspect of collective crime still carries out other crime;
(4) the guilty existence that many crime suspect carries out is direct and associated, and case processing is helpful for finding out case fact.
13.This opinion applies since April 9, 2019.
The picture originates Chinese news network, link out at xinhua net
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