民间借贷纠纷中刑民交叉案件实务问题研究

发布时间：2019-06-10 19:50

【摘要】：民间借贷在我国有着厚重的民俗积淀和历史渊源,随着时代的发展,民间借贷案件的审理变得越发纷繁复杂。在审理民间借贷案件时慎用刑法手段,准确分辨经济犯罪与正常借贷行为的差异性,妥善处理民间借贷纠纷,既要使国家的金融秩序得以维护,又要防止对正常民间借贷行为的过度打击。在处理民间借贷案件时应本着优先适用民商法调整,刑法作为最后一道防线适用,具体案情具体分析、,以此最大限度地保护当事人合法权益不受侵犯。对于被告人严格适用罪刑法定原则,严格适用罪刑相适应原则,既要惩罚犯罪,又要保护被害人的利益,以此彰显司法的公正。本文共分三大部分第一部分主要介绍民间借贷纠纷中涉及刑民交叉的典型案例,由此提出刑民交叉案件处理模式的选择问题、当事人权益的保护问题。第二部分主要是对民间借贷纠纷中刑民交叉案件现实处理模式——先刑后民的论述。分别就先刑后民的含义、渊源、实践中的适用情况进行综述,归纳理论界对先刑后民的争论观点。在对上述观点进行评析的基础上,提出笔者对刑民交叉案件的具体处理思路。第三分部重点论述民间借贷纠纷中刑民交叉案件在实践中需要注意的几个具体问题。如对于被害人主体的认定,犯罪数额的认定,借款合同效力的认定,担保人、共同借款人责任的认定问题,以及对在此类案件中制作判决主文、追缴财物时应注意的问题进行些许粗浅探析,以期同仁的修正。
[Abstract]:Private lending has a heavy accumulation of folk customs and historical origin in our country. With the development of the times, the trial of private lending cases has become more and more complex. In hearing private lending cases, we should carefully use criminal law means to accurately distinguish the differences between economic crimes and normal lending behaviors, and properly handle private lending disputes, so that the financial order of the country can be maintained. It is also necessary to prevent excessive strikes on normal private lending. When dealing with private loan cases, we should give priority to the application of civil and commercial law, and the criminal law should be applied as the last line of defense, and the specific case should be analyzed in order to protect the legitimate rights and interests of the parties from infringement to the maximum extent. The principle of legality of crime and punishment and the principle of adaptation of crime and punishment should be strictly applied to the defendant, which should not only punish the crime, but also protect the interests of the victim, so as to show the justice of justice. This paper is divided into three parts: the first part mainly introduces the typical cases involving the intersection of the criminal and the people in the private loan disputes, and puts forward the choice of the handling mode of the cross-case between the criminal and the people and the protection of the rights and interests of the parties. The second part mainly discusses the realistic handling mode of the cross-case between the criminal and the people in the private loan dispute-the punishment before the people. This paper summarizes the meaning, origin and application of the people after punishment, and sums up the controversial views of the theoretical circle on the people after punishment. On the basis of analyzing the above viewpoints, the author puts forward the concrete ideas of dealing with the cross-case between the criminal and the people. The third part focuses on several specific problems that should be paid attention to in the practice of the cross-case between the criminal and the people in the private loan dispute. Such as the identification of the subject of the victim, the determination of the amount of crime, the validity of the loan contract, the cognizance of the liability of the guarantor and the joint borrower, and the making of the main text of the judgment in such cases, The problems that should be paid attention to when recovering property are analyzed in order to correct them.
【学位授予单位】：内蒙古大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.28;D924

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