关于办理非法放贷刑事案件若干问题的意见

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为依法惩治非法放贷犯罪活动,切实维护国家金融市场秩序与社会和谐稳定,有效防范因非法放贷诱发涉黑涉恶以及其他违法犯罪活动,保护公民、法人和其他组织合法权益,根据刑法、刑事诉讼法及有关司法解释、规范性文件的规定,现对办理非法放贷刑事案件若干问题提出如下意见:

I. Where state provisions are violated by habitually lending to unspecified members of the public without the approval of the regulatory departments, or beyond the scope of operations, and for the purpose of profit, disturbing the order of the financial marketplace, and the circumstances are serious; conviction and punishment is to be for the crime of illegal business operations in accordance with Criminal Law article 225(4).

"Regularly lending to unspecified members of the public" as provided for in the preceding paragraph refers to lending money, regardless of whether called a loan, 10 times or more to multiple unspecified persons (including units and individuals) within 2 years.

Where the period for repayment of a loan is extended after the loan expires, it is calculated as a single instance of lending.

II. in any one of the following circumstances, carrying out illegal lending as provided for in Article 1 of these Opinions with actual annual interest rates exceeding 36% is 'serious circumstances' as provided for in Criminal Law article 225, except that where a single instance of lending did not exceed the 36% actual annual interest rate, it must not be included when convicting and sentencing:

(1) an individual's illegal lending amounts to a total of 2,000,000 yuan or more, or a unit's illegal lending amounts to a total of 10,000,000 yuan or more;

(2) an individual's unlawful gains amount to a total of 800,000 yuan or more, or a unit's unlawful gains amount to a total of 4,000,000 yuan or more;

(3) an individual illegally lent to a total of 50 or more persons, a unit illegally lent to a total of 150 or more persons;

(4) caused serious consequences such as suicide, death, or psychological aberration for the lender or their close relatives;

In any of the following circumstances, it is 'especially serious circumstances' as provided for in Criminal Law article 225:

(1) an individual's illegal lending amounts to a total of 10,000,000 yuan or more, or a unit's illegal lending amounts to a total of 50,000,000 yuan or more;

(2) an individual's unlawful gains amount to a total of 4,000,000 yuan or more, or a unit's unlawful gains amount to a total of 20,000,000 yuan or more;

(3) an individual illegally lent to a total of 250 or more persons, a unit illegally lent to a total of 750 or more persons;

(4) caused especially serious consequences such as suicide, death, or psychological aberration for several lenders or their close relatives;

III. in any one of the following circumstances where the amounts of illegal lending or unlawful gains, and the number of those lent to, are also close to the standard amounts and numbers provided in article 2 of these provisions for 'serious circumstances", and "especially serious circumstances", it may be considered 'serious circumstances' or 'especially serious circumstances':

(1) They have received 2 or more instances of administrative punishment for illegal lending within the last two years;

(2) They have carried out illegal lending 10 or more times with actual annual interest rates exceeding 72%.

"Nearing" as using in the provisions of the preceding paragraph shall usually be understood as 80% or more of the relevant amount or numerical standard.

IV. Article 1 of these Opinions must not be applied to convict or punish those who only lend to designated subjects such as family and friends or persons within a unit. However, in any of the following circumstances, it shall be convicted and punished together with illegal lending to unspecified subjects:

(1) Loans were given to unspecified targets through family and friends or persons within a unit;

(2) Including people within a unit for the purpose of giving them loans, and then giving loans;

(3) Conducting publicity aimed at the general public, or concurrently making loans to unspecified targets and to family and friends and persons within a unit.

五、非法放贷数额应当以实际出借给借款人的本金金额认定。 非法放贷行为人以介绍费、咨询费、管理费、逾期利息、违约金等名义和以从本金中预先扣除等方式收取利息的,相关数额在计算实际年利率时均应计入。

All assets actually collected by perpetrators of illegal lending beyond these sums are to included as unlawful gains.

非法放贷行为未经处理的,非法放贷次数和数额、违法所得数额、非法放贷对象数量等应当累计计算。

六、为从事非法放贷活动,实施擅自设立金融机构、套取金融机构资金高利转贷、骗取贷款、非法吸收公众存款等行为,构成犯罪的,应当择一重罪处罚。

为强行索要因非法放贷而产生的债务,实施故意杀人、故意伤害、非法拘禁、故意毁坏财物、寻衅滋事等行为,构成犯罪的,应当数罪并罚。

纠集、指使、雇佣他人采用滋扰、纠缠、哄闹、聚众造势等手段强行索要债务,尚不单独构成犯罪,但实施非法放贷行为已构成非法经营罪的,应当按照非法经营罪的规定酌情从重处罚。

The circumstances provided for above do not apply where the Criminal Law and judicial interpretations have other provisions.

七、有组织地非法放贷,同时又有其他违法犯罪活动,符合黑社会性质组织或者恶势力、恶势力犯罪集团认定标准的,应当分别按照黑社会性质组织或者恶势力、恶势力犯罪集团侦查、起诉、审判。

黑恶势力非法放贷的,据以认定“情节严重”“情节特别严重”的非法放贷数额、违法所得数额、非法放贷对象数量起点标准,可以分别按照本意见第二条规定中相应数额、数量标准的50%确定;同时具有本意见第三条第一款规定情形的,可以分别按照相应数额、数量标准的40%确定。

VIII. These Opinions are to take effect on October 21, 2019. 对于本意见施行前发生的非法放贷行为,依照最高人民法院《关于准确理解和适用刑法中“国家规定”的有关问题的通知》(法发〔2011〕155号)的规定办理。

 

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