民间借贷与非法集资交叉案件裁判研究

民间借贷发轫于民间,其建立在个体信用基础之上,这种基于血缘、亲缘、地缘、业缘关系的个体信用容易监督,具有稳定性但不具有成长性。非法集资是以非法占有为目的,以虚构事实、隐瞒真相、虚假宣传的欺骗方法向不特定社会公众集资的犯罪行为。在我国,非法吸收公众存款、集资诈骗、高利转贷等相关联罪名均被列入非法集资。民间借贷与非法吸收公众存款、集资诈骗等刑事纠纷交织在一起,使当事人之间法律关系的性质难以准确判断,因此,民间借贷和非法集资刑民交叉案件成为司法实践中的＂疑难杂症＂,回答这个现实问题,会受到如金融机构、市场、监管机构、公安机关、司法裁判机构等一系列因素的影响。本文从交叉案件现象、交叉案件实体法律关系研究、交叉案件程序处理方式研究、交叉案件裁判研究四方面展开,归纳民间借贷和非法集资刑民交叉案件的法律要点和裁判要旨,形成判断罪与非罪、罪轻与罪重的司法指引。     

Bank-based versus market-based financial systems: A growth-theoretic analysis

We study bank-based and market-based financial systems in an endogenous growth model. Lending to firms is fraught with moral hazard as owner-managers may reduce investment profitability to enjoy private benefits. Bank monitoring partially resolves the agency problem, while market-finance is more ‘hands-off’. A bank-based or market-based system emerges from firm-financing choices. Neither system is unequivocally better for growth, which crucially depends on the efficiency of financial and legal institutions. But a bank-based system outperforms a market-based one along other dimensions. Investment and per capita income are higher, and income inequality lower, under a bank-based system. Bank-based systems are also more conducive for broad-based industrialization.     

ICO融资行为的挑战:我国非法集资行为刑法规制路径的反思与应然选择

ICO刑法规制的尴尬处境表明,我国现行刑法中“发行标的”与“募集对象”两类规制路径的并重适用,将引发刑法设计上的“逆向选择”,进而形成法律规制效力的分散化。从非法集资被稳定界定与提高法律规制效力的集中性出发,我国应以“募集对象”路径构建针对非法集资的刑事规制体系;同时,借鉴公司法现物出资制度经验,通过概括式规则对“资金”概念进行周延界定,促成以统一的“非法集资罪”罪名对各类非法集资行为进行集中、有效刑事规制。     

什么是损害？——一个刑法哲学视角的分析

损害引发法律强制,特别是刑法的回应。社会变迁和科技发展产生了新的损害形态,但损害的概念内涵难以确定,导致损害的犯罪化边界难以划定。传统刑法哲学通过证成损害原则来理解损害,以范伯格为代表的刑法哲学家以损害为依据为刑法强制划定界限。但这种理论路径面临两难困境： 既无法借助损害的概念来为损害原则的正当性辩护,也未能充分展示损害的概念结构。其他理论家通过比较意义上的损害观、反事实的损害观和道德意义上的损害观揭示损害的概念,为损害原则的辩护寻找新的出路。从对这些立场的批评和辩护可以看出,损害与法律家长主义和法律道德主义也可以兼容。损害的概念内涵虽然充满分歧,但有助于更好地回应实践中的疑难情形,为理解刑法中的法益和智能时代的数字损害提供了支持。     

Growth, Income Inequality, and Fiscal Policy: What Are the Relevant Trade-offs?

We develop an endogenous growth model with elastic labor supply, in which agents differ in their initial endowments of physical capital. In this context, the growth rate and the distribution of income are jointly determined. We then examine the distributional impact of different ways of financing an investment subsidy. Policies aimed at increasing the growth rate result in a more unequal distribution of pre-tax income, consistent with the positive correlation between income inequality and growth observed in the recent empirical literature. However, there is no conflict between efficiency and equity if inequality is measured in terms of the distribution of welfare.     

宪政维度下的刑事被告人获得律师帮助权

作为我国的基本法律之一,刑事诉讼法的内容与我国的司法制度、公民权利等重大问题关系密切,直接体现并影响着我国法治的状况和发展进程。刑事诉讼中的人权是程序性人权,在刑事诉讼中具有独立的价值。刑事诉讼直接保障的人权就是诉讼参与人的程序权利。人权保障理念是宪政和宪法的基本要求,也是刑事诉讼法立法精神的体现。强化刑事诉讼领域的宪政理念,是保障刑事诉讼基本人权的观念基础。强化刑事被告人获得律师帮助权是我国刑事诉讼法修改的一项重要内容,借鉴国外的法治经验,刑事被告人获得律师帮助权应当成为我国公民的一项基本权利。     

Understanding the Distributional Impact of Long‐Run Inflation

The impact of fully anticipated inflation is systematically studied in heterogeneous agent economies with an endogenous labor supply and portfolio choices. In stationary equilibrium, inflation nonlinearly alters the endogenous distributions of income, wealth, and consumption. Small departures from zero inflation have the strongest impact. Three features determine how inflation impacts distributions and welfare: financial structure, shock persistence, and labor supply elasticity. When agents can self‐insure only with money, inflation reduces wealth inequality but may raise consumption inequality. Otherwise, inflation reduces consumption inequality but may raise wealth inequality. Given persistent shocks and an inelastic labor supply, inflation may raise average welfare. The results hold when the model is extended to account for capital formation.     

Unequal inequalities: Do progressive taxes reduce income inequality?

This paper analyzes the effect of changes in the structural progressivity of national income tax systems on observed and actual income inequality. Using several unique measures of progressivity over the 1981–2005 period for a large panel of countries, we find that progressivity reduces inequality in observed income, but has a significantly smaller impact on actual inequality, approximated by consumption-based Ginis. An empirical comparative analysis shows that the differential effect on observed versus actual inequality is much larger in countries with weaker legal institutions. We also find that structural progressivity has a greater equalizing effect in environments that support pro-poor redistribution. Substantial differences in inequality response to changes in top versus bottom rates are also uncovered.     

Money Laundering as a Crime in the Financial Sector: A New Approach to Quantitative Assessment,with an Application to Italy

This study provides an answer to the question of how much cash deposited via a financial institution can be traced back to criminal activities, by developing a new approach to measure money laundering and proposing an application to Italy. We define a model of cash in‐flows on current accounts considering, besides “dirty money” to be laundered, also the legal motivations to deposit cash and the role of the shadow economy. We find that the average amount of cash laundered in Italy is around 6% of GDP. These findings are coherent with estimates of the nonobserved economy obtained in previous studies.     

Low Schooling for Girls, Slower Growth for All? Cross-Country Evidence on the Effect of Gender Inequality in Education on Economic Development

Using cross-country and panel regressions, this article investigateshow gender inequality in education affects long-term economicgrowth. Such inequality is found to have an effect on economicgrowth that is robust to changes in specifications and controlsfor potential endogeneities. The results suggest that genderinequality in education directly affects economic growth bylowering the average level of human capital. In addition, growthis indirectly affected through the impact of gender inequalityon investment and population growth. Some 0.4–0.9 percentagepoints of differences in annual per capita growth rates betweenEast Asia and Sub-Saharan Africa, South Asia, and the MiddleEast can be accounted for by differences in gender gaps in educationbetween these regions.     

A Study on the Effect of Financial Inclusion on the Relationship Between Income Inequality and Economic Growth

In this article, we attempt to estimate whether financial inclusion, expressed as financial accessibility, has a positive effect on reducing income inequality. Furthermore, we estimate the effect of such financial inclusion on economic growth by reducing income inequality. From the results of our empirical analysis, we can draw the following three conclusions. First, income inequality has a very negative effect on GDP growth. The negative relationship between income inequality and GDP growth is strong in low-income countries. In addition, income inequality has a stronger effect on reducing economic growth in high-fragility countries. Second, progressivity is not a major factor in reducing income inequality in low-income countries or in high-fragility countries. Finally, financial inclusion improves the relationship between income inequality and economic growth. The reduction in income inequality through financial inclusion changes the negative relationship between income inequality and economic growth into a positive relationship. This trend is stronger in high-fragility countries than in low-fragility countries.     

我国刑事侦查权司法审查制度的确立和完善

我国刑事诉讼法在有关刑事侦查权的制度设计上存在严重的缺陷和不足,在赋予侦查机关侦查权力的同时,并没有规定相应有效的监督制约机制,以至于不可避免地造成了司法实践中因违法侦查而侵害公民合法权益的严重后果,其后又未能给予权利受害者以及时充分的司法救济。当前在刑事侦查程序中确立司法审查制度已成为刑事司法改革理论研究的主流呼声。为此,在我国现有法治框架下,如何构建我国的司法审查制度已是亟待解决的重要问题。     

What Can New Survey Data Tell Us about Recent Changes in Distribution and Poverty?

It has been claimed that in recent times the poor have lostground, both relatively and absolutely, even when average levelsof living have risen. This article tests that claim using householdsurveys for 67 developing and transitional economies over 1981–94.It finds that changes in inequality and polarization were uncorrelatedwith changes in average living standards. Distribution improvedas often as it worsened in growing economies, and negative growthwas often more detrimental to distribution than positive growth.Overall, there was a small decrease in absolute poverty, althoughwith diverse experiences across regions and countries. Almostalways, poverty fell with growth in average living standardsand rose with contraction.     

Risk management within the cannabis industry: Building a framework for the cannabis industry

Thirty states and the District of Columbia have legalized the use of cannabis for medicinal and/or recreational use by either formally or informally de‐criminalizing its use. However, cannabis remains a Schedule 1 drug under the Federal Controlled Substances Act (21 U.S.C. Sections 801 through 812), leaving federal law in conflict with the laws of over half of the states. As a result, market participants in legal cannabis businesses face risks due to the industry's unique legal status within the United States. We examine the risks and challenges deemed by the cannabis industry as the top risks facing the industry's continued future growth and its sustainability. In addition to general risks inherent in a nascent industry, a legal cannabis business faces additional risks, such as risks in its banking and finance activity, placement of insurance, payment of taxes, and managing its supply chain. These legal businesses also face true legal risk from the possibility of being shut down by the federal government and seizure of assets and product under the CSA. This paper also examines whether the cannabis industry would benefit from a futures market to mitigate price risk.     

The inequality-credit nexus

This paper explores the inequality-credit nexus from both a theoretical and an empirical perspective. The paper develops an overlapping generation model in which the effect of income inequality on private credit depends on the countries’ per capita income and on the quality of laws protecting creditor rights. The model predicts that greater inequality leads to higher levels of private credit in countries with low per capita incomes and weak legal rights, while this effect is ambiguous or negative in economies with higher aggregate income and stronger credit protection. Using a panel dataset of 155 countries over the 1982–2015 period, the paper shows empirical evidence that is robust and consistent with the model’s predictions. The paper’s major finding suggests a credit channel through which inequality may affect economic outcomes.     

Inequality and Growth Reconsidered: Lessons from East Asia

East Asian economies have experienced rapid growth over threedecades, with relatively low levels of income inequality, andappear to have also achieved reductions in income inequality.We argue that policies that reduced poverty and income inequality,such as emphasizing high-quality basic education and augmentinglabor demand, also stimulated growth. Closing two virtuous circles,rapid growth and reduced inequality led to higher demand for,and supply of, education, Moreover, low levels of income inequalitymay have directly stimulated growth. We present cross-economyregression results that are consistent with a positive causaleffect of low inequality on economic growth and with low inequalityof income as an independent contributing factor to Fast Asia'srapid growth. We conclude that policies for sharing growth canalso stimulate growth. In particular, investment in educationis a key to sustained growth, both because it contributes directlythrough productivity effects and because it reduces income inequality.     

The injustice of inequality

In many countries, the operation of legal, political and regulatory institutions is subverted by the wealthy and the politically powerful for their own benefit. This subversion takes the form of corruption, intimidation, and other forms of influence. We present a model of such institutional subversion—focusing specifically on courts—and of the effects of inequality in economic and political resources on the magnitude of subversion. We then use the model to analyze the consequences of institutional subversion for the law and order environment in the country, as well as for capital accumulation and growth. We illustrate the model with historical evidence from Gilded Age United States and the transition economies of the 1990s. We also present some cross-country evidence consistent with the basic prediction of the model.     

浅析单位内幕交易违法的认定与处罚

近年,单位作为主体从事内幕交易的案例呈增加之势。本文结合行政执法与刑事司法实践,结合近年典型单位内幕交易案例,并借鉴海外监管查处经验,着重讨论了单位内幕交易认定的一些疑难法律问题,诸如是否将单位作为违法主体以及是否处罚、如何认定单位知悉与利用内幕信息、如何区分单位内幕交易行为与个人内幕交易行为等问题。     

刍议“逃税罪”案件行政程序与刑事程序的关系

随着《中华人民共和国刑法修正案(七)》的颁布实施,偷税罪被逃税罪取而代之。本文分析了行政程序与刑事程序的关系,并对逃税罪进行了法律解释,提出了行政处罚前置是符合逃税罪立法与司法实践应有的程序选择。     

The benefits of a right to silence for the innocent

This article shows that innocent suspects benefit from exercising their right to silence during criminal proceedings. We present a model in which a criminal suspect can either make a statement or remain silent during police interrogation. At trial, the jury observes informative but imperfect signals about the suspect's guilt and the truthfulness of the suspect's statement. We show that a right to silence benefits innocent suspects by providing them with a safer alternative to speech, as well as by reducing the probability of wrongful conviction for suspects who remain silent with and without a right to silence.