“套路貸”犯罪司法適用中的疑難問題研究

The Boundary Between a Civil Act and A Crime and Problems in the identification of Crimes of ''Trick Loan''

被害人因素是“套路貸”民刑界分依據之一。被害人具有自我保護的可期待性或者盡謹慎義務可防止被“套”不成立“套路貸”犯罪。除去以民間借貸之名行騙取他人財物之實外，對“套路貸”不直認定為詐騙罪。“套路貸”團夥一般不具備非法控制特徵，不宜認定為黑社會性質組織。在“套路貸”犯罪中，先前詐騙行為與續後敲詐勒索行為可成立吸收犯，應以敲詐勒索罪論處。先前詐騙行為與續後虛假訴訟應成立詐騙罪，不宜數罪併罰。直接平賬人與“套路貸”犯罪行為人的兩個詐騙行為之間屬于法規競合關係，應根據重法優于輕法原則定罪處罰。“套路貸”犯罪數額存在“套路貸”犯罪之犯罪數額與“套路貸”之犯罪數額之別，兩者在認定上有所不同。在計算非法放貸數額時，約定利息應作為實際年利率的計算依據。

The factor of victim is one of the dividing lines between illegal acts and crimes of ''Trick Loan''. The victim has the expectability of self-protection or the duty of care to prevent being ''trapped'', and the crime of ''Trick Loan'' is not established. in addition to the name of private loans to defraud other people's real money and property, ''Trick Loan'' should not be identified as fraud. ''Trick Loan'' generally do not have the characteristics of illegal control, and should not be identified as an underworld organization. in the ''Trick Loan'' crime, and the previous fraud and the subsequent racketeering behavior can be established to absorption crime, should be punished as racketeering crime. The previous fraudulent act and the subsequent false lawsuit should be set up as the crime of fraud. The relationship between the two frauds of the direct equalizer and the ''Trick Loan'' criminal actor belongs to the competition and cooperation of laws and regulations. When calculating the illegal loan amount, the agreed interest shall be used as the basis for calculating the actual annual interest rate.