一、套路贷简介

　　（一）“套路贷”的概念

　　所谓“套路贷”，并不是一个新的法律上的罪名，而是一类、一系列犯罪行为的统称。其本质上是一系列以借贷为名，骗人钱财的违法犯罪活动。“套路贷”这类犯罪行为最初起源于民间高利贷，其后经过不断演变而成为这种不以获得被害人支付的高额利息为目的，而是以获得被害人财产为目的的犯罪行为。

　　（二）“套路贷”VS高利贷

1.“套路贷”与高利贷的连接点　

“套路贷”是高利贷不断演化的一个结果，高利贷有如下演变过程。

第一阶段，就是前述比较正常的民间借贷，放贷人是以本金生利息，获得利息的回报；

第二阶段，是砍头息，比如借30万元，一个月利息3万元，先扣掉，借贷人拿到手27万元，借条写30万元，实际上是以27万元的本金付30万元的利息。

第三阶段，就是目前我们所面对的“套路贷”，比如借30万元，约定一个月利息3万元，借条要翻倍写60万元，加上银行走流水60万元，还要提供租房、车子等抵押、担保。

2.“套路贷”与高利贷的区别

　　第一，目的不同。“套路贷”的“借款”是被告人侵吞被害人财产的借口，所以“套路贷”是以“借款”为名行非法占有被害人财物之实。高利贷出借人希望借款人按约定支付高额利息并返还本金，目的是为了获取高额利息。

　　第二，手段方法不同。（1）虚增数额的名目不同。“套路贷”中虚增数额部分一般是以担保或类似名目出现。比如签一个十年的房屋租赁合同，租金60万元，对应虚高借条的数额，如果借条数额讨不到，则派人去占被害人的房子，自己住或转租给他人从中获利。高利贷中本金之外的数额往往以利息名义设定。（2）借款人主观认识不同。“套路贷”的

The borrower (victim) is often told when signing the loan contract that if the normal repayment, the inflated amount does not need to be returned, and if the abnormal repayment must be returned, the victim subjectively believes that the inflated part does not need to be repaid; The usury borrower knew at the time of signing the contract that the high interest on top of the principal would have to be repaid. (3) Lenders have different attitudes towards "default". In order to achieve the purpose of owning the imaginary amount of money, the criminal personnel in the "routine loan" often take the means of refusing to answer the phone, "missing", so that the victim can not repay within the agreed period, and have to "default", (in fact, this is the situation of creating a default. For example, in the case of Qu Mou, he borrowed money in January and went to collect the debt in August, telling the victim that the interest has reached 900,000 yuan; Another example is Xu Mou case, the victim pays interest 50,000 yuan per month, and calls Xu mou card per month according to the requirements of the lender, but the third month, Xu Mou and others require the victim to report to its place every month, otherwise it is a breach of contract. Usurious lenders want borrowers to pay their debts as soon as possible without deliberately creating defaults.

Third, the object of infringement is different. "Set loan" infringes on many objects and causes great social harm. From inducing or forcing victims to sign contracts to violent debt collection and false litigation, it not only infringes on the property rights and personal rights of victims, but also endangers public order, destroys the financial management order, and even challenges judicial authority, seriously impairing judicial justice. Usury is mainly to destroy the financial management order.

Fourth, the legal consequences are different. "Routine loan" is illegal and criminal in nature, and the principal and interest of the loan are not protected by law. (The principal is an instrument of crime, and the interest is confiscated as illegal gains). Usury embodies the autonomy of the will of both parties, and the borrowing act itself and the interest within a certain range are protected by law. According to the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Private Lending Cases, the interest rate agreed between the two parties exceeds 36% of the annual interest rate, and the interest agreement exceeding the part is invalid. That is, the usury principal and legal interest are protected by law, and the high interest exceeding the legal limit is not protected by law.

(3) Several models of current routine lending

First, in the typical mode of Zone B, there is a clear division of labor between intermediary groups and management groups. Through empty release and bank flow, minors are induced to write false IOU, with the purpose of obtaining the amount on the IOU or the victim's real estate. The typical feature of this model is that there are obvious two gangs, and the division of labor and cooperation between and within the gangs. The intermediary gang is responsible for spreading rumors, looking for targets, and then introducing the victims to the capital gang, and the capital gang achieves the purpose of defrauding minors through subsequent loans and violent debt claims.

Second, there are two typical models in area F: the car mortgage model, there are intermediary gangs and extortion gangs, the victim's car as collateral, make it write a false IOU, and then drive away the car, in the name of selling the car to blackmail the victim. The characteristics of this model are embodied in the intermediary gang to attract customers, and then introduce the victim to the funded extortion gang, which increases the amount of contract loans in the name of liquidated damages, various fees, etc., and deceive the victim that if he does not default, he does not need to bear the money other than loans and interest, and then the funded gang secretly drives away the mortgaged car on the grounds of the victim's default. Extorting a large amount of money from the victim to redeem the car, otherwise the car will be mortgaged and disposed of. Unsecured mode, which is also a gang crime mode, the division of labor within the gang is clear, and the gang jointly completes the act of extortion. The gang first releases unsecured loan information online by some people, attracts victims, and determines the target after not paying or only paying a small amount of loan principal. That is, on the grounds that the company needs to review its credit, the common practice of the loan industry, and the need to double the guarantee without collateral, the victim is deceived to fill in the loan amount several times on the IOU and the agreement, and then the criminal suspect will blackmail the amount of the IOU.

Third, the typical model of District J, in the district's routine loan cases, its "professionalism" is more obvious. In this model, the criminal suspects set up companies in an attempt to disguise their illegal purposes under the cloak of legality. The suspect operates the usury business through the company, but its purpose is not the high interest of usury, but through the falsely high IOU, bank flow and other ways, so that the victim writes a high IOU, and then through violent means, illegal detention and other debt, it is worth noting that there are lawyers involved in this mode, tampering with the IOU, and filing false lawsuits. Trying to realize his purpose of fraud by means of litigation.

Second, analysis of typical charges of "routine loan"

"Routine loan" is not a crime, as a series of criminal behavior, will involve different charges, the author below several common routine loan charges are analyzed and introduced.

(1) Crime of fraud

The crime of swindling refers to the act of defrauding public and private property of a large amount by means of deception for the purpose of illegal possession. Article 266 of the Criminal Law provides for the crime of fraud.

Generally speaking, it is theoretically believed that the objective aspect of the crime of fraud is that the perpetrator uses fraudulent means to make others dispose of property and suffer losses in the case of producing (or maintaining) wrong understanding.

Specifically, the objective elements of the crime of fraud include four elements: fraudulent behavior, error, property disposition and property loss. Between the two elements before and after each, there is a close and continuous causal relationship between causing and being caused, which constitutes the special constitutive element structure of the crime of fraud. [1] Fraud leads to error, error leads to property disposition, and property disposition leads to property loss.

In addition to the intention aimed at the objective elements, the subjective constitutive elements also need to have the purpose of illegal possession. The purpose of illegal possession in the crime of fraud is actually the purpose of illegal profit making. In addition, it is also important to note that there are not only perpetrators and victims of fraud in the structure, but also other people. The person who may have been defrauded is not the one who lost property.

In the set loan Qu and other fraud cases handled by the Shanghai B District Procuratorate, the intermediary gang and the management gang jointly carried out the fraud, by spreading rumors such as "minors do not need to return the money", and then empty means to induce the minor Hang to write down the falsely high IOU, the victim therefore does not need to repay the high figure on the iOU. Only the wrong understanding of the amount they borrow to repay even without repayment, and then through interest, balance and other ways, the amount of borrowing continues to expand, and then through violent means to obtain debt, resulting in minors in fear of the wrong disposition of their own property (which thought it was a mortgage loan), the final result is that minors Hang real estate was sold by fraud gang Qu Mou partnership. In this case, the initial purpose of the criminal suspect was not the high interest on the loan, but the amount on the high IOU written by the minor, and then the purpose evolved into the real estate under the minor's name, and step by step through the implementation of fraud, so that the victim had a wrong understanding, based on this wrong understanding and the criminal suspect's violent means of intimidation, etc. The wrong disposition of their property resulted in the loss of property.

It should be noted here that there are some differences between false litigation and fraud. In the routine loan case handled by Shanghai J District Procuratorate, the lawyer, knowing that the victim did not obtain the loan, assisted the criminal suspect to tamper with the loan contract, filed a lawsuit with the court on the basis of fabricated facts, applied for litigation to preserve the victim's related property, and provided false evidence in the court, after which the relevant criminal suspect was taken compulsory measures. The lawyer applied for the withdrawal of the lawsuit and the cancellation of the lawsuit preservation. In this case, the criminal suspect and the lawyer, for the purpose of illegal possession, attempted to defraud others by filing a false lawsuit, the amount is particularly huge, constituting the crime of fraud.

In the present case, any lawyer whose conduct fully conforms to the provisions of Article 307 of the Criminal Law and who initiates a civil suit on the basis of fabricated facts, thus obstructing judicial order or seriously infringing upon the lawful rights and interests of another person, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also, or shall only, be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined, which constitutes the crime of false litigation. However, as provided in paragraph 3 of this article, whoever commits the act mentioned in paragraph 1, illegally occupies another person's property or evades lawful debts, and if it constitutes another crime, shall be convicted and given a heavier punishment in accordance with the provisions of heavier punishment. Therefore, in this case, the lawyer involved was convicted and sentenced for fraud.

(2) Crime of extortion

The crime of extortion refers to the act of making others deliver property (including property and property interests) by intimidation for the purpose of making illegal profits. Article 274 of the Criminal Law provides for the crime of extortion. The constitutive elements of the crime of extortion are manifested as the use of intimidation to make others fear, and then obtain property. The crime of extortion (completed) has a similar basic structure to the crime of fraud: the act of intimidation against others - the other party is afraid of intimidation - the other party is disposed of (or delivered) property because of fear - the perpetrator or the third party obtains property - the victim suffers property loss, these five elements are related in reason, and there is a fixed order. [2] Among the typical cases of routine loans, the extortion and extortion carried out by criminal suspects in F District of Shanghai using car loans as the medium is very representative. In this case, the criminal suspects include intermediary gangs and management gangs, the intermediary gang introduced the victim to the management gang, the management gang asked the victim to use the vehicle as a mortgage guarantee, sign a high amount of IOU far greater than the actual amount of borrowing (IOU contains a high margin, the criminal suspect claimed not to return), Then in a short period of time, the victim's vehicle is driven away by intentionally creating a default or even without a default, and then the victim is extorted a high ransom (higher than the IOU) by phone, and threatened to sell the vehicle, threatening not to report to the police. In this case, the victim is forced by the threat and basically chooses to pay a high ransom. Dozens of victims in this case, the amount of extortion is as little as tens of thousands of dollars, more than hundreds of thousands of dollars, are under intimidation and coercion to pay for the ransom of the car, the criminal suspects use this model, the implementation of multiple extortion, the amount is particularly huge.

(3) The crime of illegal detention

The crime of illegal detention refers to the act of intentionally detaining others illegally or illegally depriving others of their personal freedom by other coercive means. Article 238 of the Criminal Law provides for the crime of illegal detention.

To be specific, the subjective aspect of the crime of illegal detention is intentional, that is, the perpetrator knows that it will deprive others of personal freedom and intentionally do it. The motives of the crime are varied. The subject of crime is a general subject without limitation. The object of this crime is the personal freedom of others, which objectively manifests itself in the act of illegally depriving others of personal freedom by illegal detention, confinement or other coercive methods. The illegality of the act is an important condition for the establishment of the crime of illegal detention. At the same time, this crime is easily involved with other crimes, it is necessary to distinguish one crime or several crimes. In addition, the illegal detention of debt claim is a relatively frequent type at present.

In the typical case of this routine loan, among the crimes of fraud, extortion and illegal detention of Chen Moumou and Han Moumou handled by the J District Procuratorate of Shanghai, illegal detention is very typical. In this case, the victim Xu Mou to the suspect Chen Mou, Han Mou and other loan sharks to borrow 200,000 yuan, the same day, the suspect Chen Mou and other six people that follow Xu Mou to ensure that the money back, in the case of Xu mou can not repay on the same day, Xu Mou was taken to a hotel detention, and beaten until the next day Xu Mou family fundraising 205,000 yuan. In this case, the behavior of the criminal suspects is a typical illegal detention of debt, debt does exist, several criminal suspects took Xu detained in a hotel room to restrict Xu's freedom to ask for debt, and there is beating, in line with the first paragraph of the crime of illegal detention, the third paragraph of the situation. It is worth noting that in this case, there are also acts of extortion and fraud, several crimes and penalties, not implicated offenders.

(4) Crime of picking quarrels and provoking troubles

The crime of picking quarrels and provoking troubles refers to the acts of giving vent to emotions, being conceited, making trouble in public places, arbitrarily beating, chasing, intercepting, abusing, intimidating others, forcibly seizing, arbitrarily damaging, occupying public and private finances, disrupting public order, with bad circumstances and serious consequences. It is stipulated in Article 293 of the Criminal Law. In terms of constitutive elements, the subject of the crime of picking quarrels and provoking trouble is a general subject, and there is no dispute. In terms of object, the violation should be social order, which refers to public order, including order in public places and order in non-public places. ① The subjective aspect of the crime of picking quarrels and provoking trouble should be direct intention, and the content of the act should be act, excluding omission. Objectively, there is some ambiguity in this crime, which is classified and summarized by enumeration in law and judicial interpretation. In the case of routine loan, the situation that may involve the crime of picking quarrels and provoking troubles is that in the debt collection, the whole debt relationship is not clear, and only one or two of the abuse, intimidation and blocking the door to the victim and his family members are involved, and the crime of picking quarrels and provoking troubles is convicted under the condition that it does not constitute extortion and fraud.

Third, the legal application and investigation points of "routine loan" cases

(1) Application of law

"Routine loan" is a common saying, there is no such a crime in the criminal law, and "porcelain" is similar, the latter involves traffic accidents, extortion, fraud, dangerous methods of endangering public security crimes. "Routine loan" involves more abundant charges, including fraud, extortion, illegal detention, robbery, picking quarrels and provoking trouble, false litigation, false litigation and fraud and so on.

From the general principle, the conviction is strict and involves specific application, which can be gradually analyzed from the following aspects:

1. The choice of charges applies

First of all, the essential feature of the crime of "routine loan" is that the criminal illegally occupies the legitimate property of the victim and his close relatives, which belongs to the crime of financial assault, and is generally convicted and punished by the crime of fraud.

Secondly, if the defendant used violent means such as beating, illegal detention, or threatened violence against the victim and his close relatives when "claiming debt", in line with the characteristics of robbery or extortion, the relevant charges shall be convicted and punished. If there is illegal detention during the period, the circumstances are serious, and the crime of illegal detention shall be determined.

For the "routine loan" criminal behavior at the same time constitute a variety of crimes such as fraud, illegal detention, extortion, robbery and other crimes, in accordance with the provisions of the criminal law to carry out a number of crimes combined punishment or choose a heavier punishment conviction punishment (for example, compared with fraud and extortion, extortion is a felony).

If a civil action is brought on the basis of fabricated facts, which impinges on judicial order or seriously infringes upon the lawful rights and interests of others, it shall be deemed as a false action.

It should be noted that, according to the provisions of Article 307, paragraph 3, of the Criminal Law, those who commit acts in the first paragraph, illegally occupy another person's property or evade lawful debts, and constitute other crimes, shall be convicted and given a heavier punishment in accordance with the provisions of heavier punishment. Here is generally false litigation compared with fraud, fraud conviction heavier punishment. If any of these judicial personnel take advantage of their power to participate in crimes, they shall be given a heavier punishment.

In addition, for the staff and horses in the "routine loan" company or gang, if the subjective knowledge that the boss, shareholders, core members are implementing the "routine loan", it is identified as a joint crime; If you do participate in one or two, subjectively do not know that it is "routine loan", think that it is to help the boss to ask for usury, constitute the crime of picking quarrels and provoking trouble, identified according to law.

2. Identification of principal and subordinate offenders

(1) Identification of a criminal group

For the "routine loan" joint crime, there is evidence to prove that more than three people formed a relatively strict and fixed criminal organization, premeditated and planned to carry out the "routine loan" crime, has formed a criminal group, should be identified as a criminal group. For example, Chen Moumou and others sentenced by the J District Court took Shanghai Hengshen Business Consulting Co., Ltd. as the main body of operation, carried out routine loan crimes, and identified a criminal group according to law.

The case of the F District Procuratorate, Wang Mou and other 16 people extortion, is a loose organization and operation of the gang, the members both commit crimes with each other, and commit crimes separately, there is a usury in the middle of the routine loan, the distribution of spoils is not divided by a certain structure, basically who participates in who shares the spoils, and ultimately not identified as a criminal group.

(2) Identification of principal and subordinate offenders

The principal members of a criminal group shall be punished in accordance with all the crimes committed by the group. The principal offender of a criminal group shall be punished according to all the crimes he has participated in or organized or directed.

For those who participate in the whole process, they are identified as accessory to all the crimes they participate in.

With respect to individual facts and individual links involved, if the perpetrator plays a major role, he is identified as the principal offender for the crime he participated in; if he plays a helping or secondary role, he is identified as an accessory for the crime he participated in.

3. Determination of the amount of crime

(1) In judicial practice, the victim's lost property is generally identified. For example, in the case of Qu Mou handled by the Procuratorate of District B, part of the view was determined by the 952,000 yuan occupied by Qu Mou, and finally by the loss of a house by the victim, 1.94 million yuan.

(2) In the identification of the criminal amount of "routine lending", grasp the criminal nature of "routine lending" behavior, distinguish it from private lending, and give a negative evaluation on it as a whole.

The fees charged by the defendant in the borrowing process in various names such as "liquidated damages", "deposit", "intermediary fees" and "service fees" are included in the amount of the crime to be identified.

In addition to the principal actually received by the borrower, the interest agreed by the two parties is not protected by law and shall be included in the amount of the crime and shall not be deducted from the amount of the crime.

4. Determination of accomplished and attempted

(1) The amount lost by the victim is determined to be completed, and if the victim has not lost and has only been cheated of the IOU, the determination is attempted.

(2) The application for pre-litigation property preservation, seizure, seizure, freezing, as long as it has not been transferred, deemed to have failed.

In addition, for those who have lost the court's first instance judgment but have not yet been executed, how to identify both failed and for those who have entered the execution procedure and have not yet been executed, how to identify both failed has not yet formed a unified opinion, which needs to be explored and summarized in the next judicial practice.

(2) Investigation points of "routine loan" cases

All investigation work should be carried out around the "routine". Lenders to borrow - falsely high IOU - bank flow - house visits or other rental guarantees, guarantors guarantee, sign a guarantee contract - deliberately put a small amount of money or no loan - deliberately create a default - ask to provide a guarantee to borrow money or force the balance (the above process goes again) - forcibly collect debts or bring a civil lawsuit or occupy the house or give the house to do a network sign to prevent the victim from trading - get Illegal income, all the evidence work should also be around this "routine".

1. Objective evidence, listed as follows:

(1) Evidence of a criminal group or gang engaged in routine lending.

Including: the company's industrial and commercial registration information, shareholders, business cards, company search and seizure of documents such as ious, loan agreements, house leasing contracts.

(2) Fictitious high IOU.

(3) Bank card details, especially withdrawals and transfers

(4) Guarantee contract.

(5) Loan, guarantee contract and other documents to balance the account.

(6) The information of civil proceedings is generally to be retrieved from the court archives

(7) Evidence that the house was signed online.

(8) Evidence of violent debt collection, such as spray paint, reporting to the police station, injuries on the victim's body, and related tools used for violent debt collection.

(9) Evidence of illegal detention, such as hotel registration, hotel surveillance video, etc.

(10) The surveillance video of the counter where the victim claims to withdraw cash on the counter or give cash directly to the suspect.

(11) The source of funds used by the suspect to purchase the house, etc.

(12) Mobile phone call records, wechat chat records, etc. The name of the owner of the phone and the relationship to the suspect will also be obtained. For example, in the case of Qu in Area B, the phone call records were highly consistent with the time when the money entered and exited the victim's card.

2. Subjective evidence, listed as follows:

(1) Verbal evidence of criminal suspects on the establishment, membership, investment shares, sharing, wages, etc., of criminal groups and criminal gangs.

(2) Division of labor within criminal groups and criminal groups

(3) Evidence of Ma Zai's "subjective knowledge" of the routine loan

(4) Post-reconciliation is evidence of "subjective knowledge" for pre-reconciliation, and vice versa.

(5) Confirmation of the "same routine" between multiple victims about being cheated.

(6) The victim's identification of the suspect should be as detailed as possible, such as: Zhang SAN who took me to the Wusong branch of the Agricultural Bank of China to transfer money, including a description of hometown, accent, body shape and so on.

(7) The victim's statement should be taken as the outline, the confession of each suspect as the content, and the evidence of the specific criminal facts should be fixed.

(8) Fixing of verbal evidence of fraud, threats, threats, etc.

3. Investigation strategy

(1) The victim's statement must be detailed, especially the detailed evidence related to the above behavior, and carefully ask the reasons for some contrary to common sense. For example: there is no objection to the inflated IOU and the doubled balance, and there should be a reasonable explanation.

(2) Try to get Ma Tsai and other accomplices to accuse the principal offender.

(3) If Ma Zai came forward to file a civil lawsuit, it is necessary to find out his economic situation, whether he lent the money or helped the boss come forward.

4. Pay attention to the evidence of whether bank staff, lawyers and notary public are involved in crimes. Even if they are not involved in crimes, they can also fix some evidence that they find unreasonable in the process of bank flow, notarization and providing legal services.

Conclusion

The development and spread of "routine loan" crime not only directly infringes on the legitimate property rights and interests of victims, but also the violence, threats, false litigation and other means of payment are easy to induce other crimes, bringing a series of social problems. At present, Shanghai political and legal organs have fully realized the problem and begun to severely punish the crime of "routine loan" according to law. The author hopes that this article will provide some experience and guidance for the three organs of public prosecution law to crack down on the crime of "routine loan".