Criminal regulation of market credit

發布時間:2020-06-02 23:40

下面為大家帶來一篇優秀的的essay范文 隨著社會經濟的不斷發展,人們的交易也頻繁發生,“信用”的概念也逐漸進入人們的視野。信用在不同方面的含義不僅是道德的,而且是法律的和經濟的。在道德層面上,信用是指在誠實信用的基礎上,在人與人之間建立的社會道德意義上的“雨過天晴”的行為。這篇論文討論了市場信用的刑法規制。市場信用刑法,指的是與刑法及相關懲治背信犯罪行為的法律規范的總稱。市場經濟越發展,個人信用所發揮的功能越重要,個人信用體系的完善與否已成為市場經濟是否成熟的顯著標志之一。一起來看看吧


Since the reform and opening up, with the development of economy, China's market-oriented reform has made remarkable achievements. It has entered the "credit economy development stage" established by western economic theory and historical experience of developed countries. Unfortunately, however, in China's economy maintained rapid growth for a long time, the comprehensive national strength significantly increased, people's living standards improved significantly, at the same time, market credit crisis intensified, has become the order of our country's economy, hamper the transaction security, influence the national economic and social development. Civil law, administrative law and other relevant laws, because of its inherent characteristics, not good for the market credit back crime be good regulation such as the status quo, this paper aimed at the situation, put forward the market credit measures of criminal law, and make the regulation of market credit can be perfect.

With the continuous development of social economy, people's transactions are also occurring frequently, and the concept of "credit" is gradually coming into people's eyes. The meaning of credit in different aspects is not only moral but also legal and economic. On the moral level, credit refers to the behavior of "taking a rain-check" on the basis of honesty and credit, which is established between people and people in the sense of social morality. In the aspect of law, credit generally refers to the performance of legal contracts by social members. Many different kinds of credit, according to the main of credit activities and form different can be divided into: commercial credit, bank credit, government credit, consumption credit, government credit, personal credit, other credit, etc.

In the economic society, the credit is the premise and foundation of Commodity Exchange, Commodity Exchange is the premise and foundation of economic operation of the market, there is no denying the fact that credit is the premise and foundation of economic operation of the market, is the basic rules of market relationship. Modern economy is not only legal economy, but also credit economy. The development of economy depends on the maintenance of legal system, but at the same time, it also depends on the perfection of market credit to create a good credit environment for it.

Credit is an important part of the market. In the developed economic society, an effective market information is the key guarantee. A stable credit market is the basis and precondition for the operation of other activities.

The criminal law of market credit refers to the general name of the criminal law and relevant laws and regulations for punishing the crime of breach of trust. In modern Chinese, "credit" is "the trust gained by being able to fulfill an agreement". In the context of law, for the meaning of trust, faith, honesty and credit, said, "believe that others will give oneself to protect or some kind of security, it can involve subordinate relationship, can also be involved in equal relations". Credit has the branch of the government credit and personal credit, the former is also called the public credit, refers to the government as a debtor, by means of credit instruments such as bonds to raise funds from the society from all walks of life way of a credit. Government credit is the social public to a government credit's willingness, capacity and behavior of evaluation, is the political entrusted agent of the credit is formed in an agency relationship, reflects the public trust in government. Personal credit is based on trust, by a certain agreement or contract to provide a natural person's credit, make people don't have to pay cash they accept credit to obtain goods or services, it includes not only used as a personal or family consumption credit transactions, also used as a personal investment, entrepreneurship, and production and operation of the credit. Personal credit system is a rule system about personal credit transactions. Personal credit is the basis of social credit. Market subjects are composed of individuals. All economic activities in market transactions are closely related to personal credit. Once the constraint of personal behavior is lost, the behavior of personal dishonesty will occur, and then the collective dishonesty will occur. Personal credit is not only the foundation of a country's market ethics and moral culture construction, but also a huge resource for a country's economic development. Exploiting and utilizing such resources can effectively promote consumption, optimize resource allocation and promote economic development. The development of the market economy, the personal XinYongSuo exert the function of the more important, the personal credit system is perfect or not has become a significant sign of mature market economy, the two types of credit is in the context of the criminal law. Credit market is the market main body participation in social economic activities in the credit, in addition, the market credit mainly criminal law on the crime of criminal behavior in bad faith, so on the main object of market credit criminal law is both: public and private.

With the development of economy, China's market economy has made great progress, but there is no denying that the lack of credit seriously damages the market and affects the healthy development of socialist market economy. Examples: malevolent delinquency, contract fraud, counterfeiting, false disclosure, paid news, false advertising, fake financial markets. The lack of credit has greatly increased the transaction cost of the market, which directly affects the improvement of the market system and the efficiency of resource allocation. The most serious consequence is to undermine the foundation of the market economy, shake the confidence of investors and affect the international competitiveness of the Chinese economy. In addition, the economic consequences of credit losses are very serious.

Market credit system of safeguard of law, should be to its perfect legal protection, according to the degree of social harmfulness, the law for protection of its behavior can be divided into civil law protection, administrative law and criminal law protection. Obviously, the guarantee of the credit market of civil law and administrative law is essential, but its own limitation determines that it cannot be well dealt with in the case of bad credit deficiency. But starting from the legal protection system of integrity and cohesion, by civil law and the criminal law behavior of administrative law against the crime, not only to achieve legal security system of cohesion, but also play the protection of the criminal law. For example, some scholars put forward the problem of "criminalization of maliciously evading and abolishing debt", which is a good illustration of this situation. Malicious evasion of debt, is the current credit crisis in our country, the most typical performance of economic life, generally refers to the offender is not or less debt, for the purpose of violating the principle of honesty and credit, take fraud means to change the existing legal relationship, and then destruction of creditor's rights and debts. Maliciously evading and abolishing debt has serious social harm, which affects the rights of creditors and seriously damages the market credit security, thus undermining the market economic order.

Criminal law is the unification of strictness and finality. Because of its own legal nature, criminal law is extremely strict, which determines that it can play a significant role in adjusting social relations. The finality of this kind of criminal law indicates that criminal law can make up for the inadequacy or impossibility of the adjustment of other laws. Civil liability is the liability between equal subjects, the civil law does not give punishment by a party to the other party's rights, civil liability is primarily a compensation liability, except on the bearing of liquidated damages in accordance with some person as long as make up for the loss or damage actually suffered by the injured party is is enough, do not need to pay additional cost. Administrative law level, although the banking supervision authorities and relevant departments issued a series of measures to prevent malicious evasion of debt and sanctions, but authoritative law has yet to form a reasonable mechanism, malicious evasion of debt not rise as a administrative illegal behavior, especially the lack of administrative responsibility to follow up as guarantee, to malicious debt evasion behavior of administrative punishment measures are weak, often can not reach the effect of sanctions. Based on other laws, the regulation of market credit cannot be perfect. The criminal law on foreign market credit

The law on "credit" stipulates that all countries and regions in the world have their own characteristics. Although these countries and regions have relatively complete legislative provisions on credit in the field of private law, the role of criminal law in credit protection has not been ignored in the field of public law. It is fair to say that the use of strict criminal laws to regulate credit is not a poaching but a necessity. Because these countries and regions all implement the market economy, and the market economy is based on the contractual credit economy, the protection of credit without criminal law is a deviation from the market economy. The criminal code of Japan divides crimes against the interests of credit law into crimes against the interests of personal law and crimes against the interests of social law. In order to protect the creditor's rights, chapter 4 of the bankruptcy law of Japan "penalty" provides seven charges including fraud and bankruptcy. Italy chapter 7 of the specific provisions of criminal code felony "infringement of public faith to sin," police crime chapter 1 section 1 eye komoku 3 3, the "about preventing infringement of public faith of police crime". In terms of crimes against public credit, chapter 8 of the German penal code provides for crimes of counterfeiting currency and securities, and chapter 23 provides for crimes of forging documents. In property crimes, chapter 22 provides for fraud and breach of trust. In the protection of creditor's rights, chapter 24 provides detailed provisions on bankruptcy crimes. Chapter 4, section 1, chapter 4, of the crime of fraud in possession of property, part 1 of volume 3 of the criminal code of France, provides for the crime of abusing the trust of others. Russia in the field of economic crime in the criminal code specifies property loss caused by fraud or abuse of trust method to crime, malicious escape crime, violation of public credit, the credit debt unfair bankruptcy crime and commercial organizations and other organizations violate the interests of the service in the crime. Chapter 34 of the Korean criminal code stipulates the crime of obstructing credit, business and auction, chapter 18-21 stipulates the crime of public credit, and chapter 40 stipulates the crime of embezzlement and breach of trust. The criminal code of Taiwan stipulates the crime of obstructing credit in the crime of violating the interests of individual law. In the crime of violating the interests of social law, the crime of impairing public credit and trade security is stipulated. In the property crime, the crime of breach of trust and the crime of damage to creditor's rights are stipulated. In order to protect the creditor's rights, Taiwan's bankruptcy law makes it a crime to commit some fraudulent ACTS in bankruptcy and violate certain legal obligations.

The above countries and regions are in the relevant chapters, sections of the criminal law and law explicitly using the "credit" or similar to the "credit" concept, and on the comparison of the provisions of crimes market credit system, concentration, perfect, fully reflects the criminal legislators attaches great importance to protect credit and eager attention. But under the condition of market economy, in the same shall XinYongSuo role and market faithless behavior is the same to the harm of the market, the harm of criminal law regulation of the market credit behavior also has a certain regularity and similarity. It is necessary to construct a scientific and reasonable market credit criminal law system.

Market credit is the basis and premise of other activities, that it is necessary to strengthen the regulation of market credit, especially as the crime of breach of trust punitive is most useful in terms of criminal law, more prominent. Based on the current criminal law regulation on market credit and the nature of criminal law, this paper puts forward the following Suggestions:

To formulate a special criminal law on market credit, so that the criminal act of breach of trust can be enforced. If can targeted its corresponding law, when the market credit protection, can fully play the role of its inherent essence, can very good and comprehensive to achieve the purpose of the law, so as to maintain the stability of social market economy, promote its further development. A law specifically aimed at market credit can, to some extent, simplify the process of legal sanctions when reducing other legal burdens.

The criminal law should add the crime of credit destruction and strengthen the protection of individual credit right. The present criminal law does not stipulate the protection of individual credit right, which is an obvious deficiency. With the development of market economy, individual XinYongQuan with both personality and property characteristics in social economic life plays a more and more important role, the market economy requires promise keepers, paper. Once the personal credit right is damaged, the hope of obtaining potential or direct economic sources and economic benefits will be greatly reduced until it is destroyed. Therefore, the individual credit right needs to be protected by criminal law, so we can learn from the provisions of the criminal law outside the region, and set up the crime of damaging the personal credit right in China's criminal law.

The criminal law protection of creditor's right should be strengthened by adding the crime of malicious debt evasion. The creditor's right debt relation is the most basic legal relation in the market economy society and the most typical credit relation in the market economy society. Either from the perspective of the social harmfulness of malicious debt evasion behavior, or from the civil law to punish the behavior of malicious evasion of debt limits of extraterritorial criminal law, criminal policy and the social effect and infringement of creditor's rights of crime, malicious debt evasion behavior should be brought into the regulatory scope of criminal law has become an inevitable trend of the development of the criminal law. Therefore, it is necessary to consider increasing the crime of maliciously evading and abolishing debt against common creditor's rights and perfecting the bankruptcy crime in our criminal law.