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近几年来涉及民间资本融通犯罪的案例——温州融资事件、吴英案等,表明了在经济发展中,民间金融融资犯罪管控的紧迫性。经济理论认为,在市场经济之中,市场调控之下的各种生产资料受市场的支配力度比较明显,而资金作为一种生产资料资源,其本身就具备一般生产资料的趋利特性,因此,在市场经济中,民间资本进行自发的融资行为,是不可避免的,这一点也得到学界和实务界认可的。面对民间金融融资乱象,民间借贷的“罪与罚”引起司法界的广泛争议。在这场争议之中,我们应当思考几个问题:既然民间资本的融通,是市场经济发展不可避免的,那么,我们如何厘清民间借贷中的合法与非法?如何对民间借贷进行有效监管?民间借贷情况复杂,很容易陷入高利贷甚至非法集资的陷阱,其合法与非法的边界在哪里?如何对由合法转化为非法行为的融资进行界定和法律适用呢?
In recent years, involving cases of civil capital financing crime - Wenzhou financing events, Wu Ying case, shows that in the economic development, the urgency of crime control of non-governmental financial financing. Economic theory holds that in the market economy, the various means of production under the market control are more dominated by the market. As a resource of means of production, capital itself possesses the profit-making characteristics of general means of production. Therefore, In a market economy, private capital for voluntary financing behavior is inevitable, which is also recognized by academics and practitioners. Faced with the chaos of private financial financing, the “crime and punishment” of private lending has caused widespread controversy in the judiciary. In this dispute, we should ponder a few questions: Since the non-government capital is unavoidable, the development of the market economy is inevitable. How can we clarify the lawfulness and illegality in the private lending? How to supervise the private lending effectively? Borrowing is complicated and can easily fall into the trap of usurious loans and even illegal fund-raising. Where is the legal and illegal border? How to define and apply the law for financing that is legally transformed into illegal behavior?