論民間借貸案件中的刑民并行原則
發(fā)布時間：2019-03-18 16:43
【摘要】：近年來,大量的民間閑置資本被轉移到民間借貸上來,民間借貸的規(guī)模不斷壯大,其所引發(fā)的糾紛也層出不窮,這些糾紛中既有刑事類案件,也有民事類案件,甚至出現(xiàn)二者的交叉。刑民交叉案件的復雜性也引起了學界的關注,它涉及到刑事案件和民事案件等多方的利益,各方利益交織在一起也決定了它需要我們慎重地對待。在處理刑民交叉案件時關鍵是找到一個合理解決問題的切入點,尋求各方利益的平衡,才能從實質(zhì)上創(chuàng)造公正的法治環(huán)境,從而適應我國民主法治的進程。本文以民間借貸所涉及的擔保案例作為切入點,通過把握刑民交叉案件背后所存在的共通點,先從法理上分析該問題所蘊含的內(nèi)在價值指向,再分析法律條文的應有之義,從而得出刑民并行原則,同時指出存在的某些例外情況。這篇文章從案例比較入手,所引用的案例為民間借貸所涉的刑民交叉案件,其包含的案情大致如下,在民間借貸中的借款人因涉及的非法吸收公眾存款罪而依法承擔責任,此時司法機關雖然可以依據(jù)刑法第176條之規(guī)定追究行為人的刑事責任,但單憑該條規(guī)定未能承擔起定紛止爭的職責。在追究借款人的刑事責任外,非法吸收存款罪所涉及的債權人往往通過民事訴訟程序追究債務人和擔保人的債務責任,希望以此來維護自身的合法權益。由此又造成了新的問題,即刑事訴訟程序與民事訴訟程序的交叉后,應當怎么處理程序上的先后順序問題。本文擬在四個層次進行分析,首先分析刑民交叉案件存在的問題,接著從法律理論出發(fā),這其中包含法理和法律條文兩個層次,分析刑民并行作為基本原則的依據(jù),最后從理論回歸到實踐。第一章“刑民交叉案件處理原則的理論和實踐分歧”分為三節(jié)。第一節(jié)列舉了的案例中債權人提出民事訴訟追究借款人的還款責任以及擔保人的擔保責任,而此時借款人卻因為涉及非法吸收公眾存款罪被追責,因為涉及刑事犯罪,法院以此駁回了債權人的請求。第二節(jié)列舉的案例的類型相同,但法院卻沒有認可刑事程序?qū)τ诿袷鲁绦虻挠绊?反而認可了民事責任。第三節(jié)則是對上兩節(jié)案例的剖析,進而提出筆者的觀點,即處理該類刑民交叉案件的基本原則應當是刑民并行,但不排除特殊情況。第二章“刑民并行的法理基礎”,該章是從決定刑民先后順序的內(nèi)在法理精神角度出發(fā),剖析刑民并行的合理性。本章分為兩節(jié),第一節(jié)分析法學理論,主要包括我國法律體系的構成,即我國刑事法律規(guī)范和民事法律規(guī)范在結構上存在何種關系。第二節(jié)是從刑民交叉案件所涉及的法益指向角度分析,包括公權與私權、公正與效率、利益的平衡等概念的角度尋求刑民并行的科學性、合理性依據(jù)。第三章“刑民并行的法律依據(jù)”,該章節(jié)包含三個小節(jié),首先分析刑民交叉案件處理順序相關規(guī)定的沿革,找出立法者的原意；接著分析域外國家的做法,找出借鑒的意義；最后,總結前文的分析,梳理出影響刑民交叉案件處理順序的因素。第四章“刑民并行作為處理原則的實踐回歸”,本章是將理論分析的結果應用到實踐當中,解決前文案例所出現(xiàn)的分歧。結合實踐,刑民并行是基本原則,刑民有先后則是例外。
[Abstract]:In recent years, a large number of civil idle capital has been transferred to the private lending, and the scale of the folk lending is growing, and the disputes arising from them are emerging. There are both criminal and civil cases in these disputes, and even the intersection of the two. The complexity of the cross-case of the criminal is also a concern of the academic circle, which involves the interests of many parties, such as the criminal case and the civil case, and the interests of the parties are interweaved together, and it needs us to be treated with caution. In dealing with the cross-case of the people, the key is to find a reasonable problem-solving point, and to seek the balance of the interests of the parties in order to create a just and just environment of the rule of law in essence, so as to adapt to the process of the democratic rule of law in our country. This paper, as an entry point, takes the guarantee case involved in the folk loan as the entry point, and analyzes the inherent value of the problem from the legal theory, and then analyzes the legal provisions, so as to obtain the parallel principle of the people. At the same time, it was noted that certain exceptions were present. This article is based on the case comparison, and the case cited is the cross-case of the people involved in the folk loan. The case is as follows: the borrower in the private loan is held liable according to law for the illegal absorption of the public deposit, In this case, although the judicial organ may hold the criminal responsibility of the actor in accordance with the provisions of Article 176 of the Criminal Law, the judicial organ fails to assume the responsibility of initiating the dispute on the basis of the provisions of this article. In addition to the criminal liability of the borrower, the creditors involved in the crime of illegally absorbing the deposit often hold the debts of the debtor and the guarantor through the civil procedure, so as to safeguard the legitimate rights and interests of the debtor. As a result, there is a new problem, that is, after the intersection of the criminal procedure and the civil procedure, how to deal with the sequence of the procedure. This paper is to analyze the four levels, first analyze the problems existing in the cross-case of the people, and then, from the theory of law, this includes two levels of law and law, the analysis of the basis of the parallel as the basic principle, and finally from the theory to the practice. Chapter I "The Theory and Practice of the Principle of Dealing with the Cross-case of the People's Republic of China" is divided into three sections. In the case of the first section, the creditor filed a civil action to hold the borrower's repayment responsibility and the guarantee liability of the guarantor, and at that time the borrower was in charge of the crime of illegal absorption of the public deposit, which dismissed the creditor's request as a result of the criminal offence. The types of cases cited in section II are the same, but the Court does not recognize the impact of the criminal procedure on the civil procedure, but rather the civil liability. The third section is the analysis of the last two cases, and then the author's point of view, that is, the basic principle of dealing with the cross-case of the type of punishment should be the parallel of the people, but the special situation is not excluded. The second part of the "The Legal Basis of the Parallelism of the People in China" is to analyze the rationality of the parallelism of the people from the angle of the internal legal spirit of the order of the people. This chapter is divided into two sections, and the first section analyses the theory of law, mainly including the constitution of our country's legal system, that is, what kind of relationship is in the structure of the criminal law and civil law of our country. The second section is the analysis of the legal interest points involved in the cross-case of the people, including the scientific and reasonable basis of the parallel nature of the punishment people from the perspective of the concept of public right and justice, justice and efficiency, and the balance of interests. In chapter three, the "The Legal Basis of the Parallelism of the People", which contains three sections, first analyzes the evolution of the relevant provisions of the processing order of the cross-case of the criminal and finds out the original intention of the legislators, and then analyzes the practice of the extraterritorial countries and finds the significance of the reference; and finally, the above analysis is summarized. The factors that affect the order of the processing of the cross-case of the condemned people are sorted out. Chapter four "The practice regression of the principle of the processing of the people in parallel as the principle of treatment", this chapter is to apply the result of the theory analysis to the practice, to solve the differences that appear in the above cases. In combination with the practice, the parallel is the basic principle, and the punishment of the people is the exception.
【學位授予單位】：南京大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925
[Abstract]:In recent years, a large number of civil idle capital has been transferred to the private lending, and the scale of the folk lending is growing, and the disputes arising from them are emerging. There are both criminal and civil cases in these disputes, and even the intersection of the two. The complexity of the cross-case of the criminal is also a concern of the academic circle, which involves the interests of many parties, such as the criminal case and the civil case, and the interests of the parties are interweaved together, and it needs us to be treated with caution. In dealing with the cross-case of the people, the key is to find a reasonable problem-solving point, and to seek the balance of the interests of the parties in order to create a just and just environment of the rule of law in essence, so as to adapt to the process of the democratic rule of law in our country. This paper, as an entry point, takes the guarantee case involved in the folk loan as the entry point, and analyzes the inherent value of the problem from the legal theory, and then analyzes the legal provisions, so as to obtain the parallel principle of the people. At the same time, it was noted that certain exceptions were present. This article is based on the case comparison, and the case cited is the cross-case of the people involved in the folk loan. The case is as follows: the borrower in the private loan is held liable according to law for the illegal absorption of the public deposit, In this case, although the judicial organ may hold the criminal responsibility of the actor in accordance with the provisions of Article 176 of the Criminal Law, the judicial organ fails to assume the responsibility of initiating the dispute on the basis of the provisions of this article. In addition to the criminal liability of the borrower, the creditors involved in the crime of illegally absorbing the deposit often hold the debts of the debtor and the guarantor through the civil procedure, so as to safeguard the legitimate rights and interests of the debtor. As a result, there is a new problem, that is, after the intersection of the criminal procedure and the civil procedure, how to deal with the sequence of the procedure. This paper is to analyze the four levels, first analyze the problems existing in the cross-case of the people, and then, from the theory of law, this includes two levels of law and law, the analysis of the basis of the parallel as the basic principle, and finally from the theory to the practice. Chapter I "The Theory and Practice of the Principle of Dealing with the Cross-case of the People's Republic of China" is divided into three sections. In the case of the first section, the creditor filed a civil action to hold the borrower's repayment responsibility and the guarantee liability of the guarantor, and at that time the borrower was in charge of the crime of illegal absorption of the public deposit, which dismissed the creditor's request as a result of the criminal offence. The types of cases cited in section II are the same, but the Court does not recognize the impact of the criminal procedure on the civil procedure, but rather the civil liability. The third section is the analysis of the last two cases, and then the author's point of view, that is, the basic principle of dealing with the cross-case of the type of punishment should be the parallel of the people, but the special situation is not excluded. The second part of the "The Legal Basis of the Parallelism of the People in China" is to analyze the rationality of the parallelism of the people from the angle of the internal legal spirit of the order of the people. This chapter is divided into two sections, and the first section analyses the theory of law, mainly including the constitution of our country's legal system, that is, what kind of relationship is in the structure of the criminal law and civil law of our country. The second section is the analysis of the legal interest points involved in the cross-case of the people, including the scientific and reasonable basis of the parallel nature of the punishment people from the perspective of the concept of public right and justice, justice and efficiency, and the balance of interests. In chapter three, the "The Legal Basis of the Parallelism of the People", which contains three sections, first analyzes the evolution of the relevant provisions of the processing order of the cross-case of the criminal and finds out the original intention of the legislators, and then analyzes the practice of the extraterritorial countries and finds the significance of the reference; and finally, the above analysis is summarized. The factors that affect the order of the processing of the cross-case of the condemned people are sorted out. Chapter four "The practice regression of the principle of the processing of the people in parallel as the principle of treatment", this chapter is to apply the result of the theory analysis to the practice, to solve the differences that appear in the above cases. In combination with the practice, the parallel is the basic principle, and the punishment of the people is the exception.
【學位授予單位】：南京大學
【學位級別】：碩士
【學位授予年份】：2014
【分類號】：D925
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