我国外汇犯罪背景下金融刑法的不足与完善

The Deficiency and Improvement of Financial Criminal Law under the Background of Foreign Exchange Crime in China

摘要: 我国是一个外汇交易管控制国家。近几年，伴随着互联网金融技术革新和人民币国际化，传统的金融交易模式产生了翻天覆地的变化，“成本低”、“效率高”、“融合强”的互联网平台交易模式呈几何增长势态，外汇交易成为一种新潮。此背景下，金融刑法在多变的互联网外汇犯罪中不断受挫，金融刑法规制扩大化趋势间接抑制了金融创新，刑事立法的滞后性与刑事司法的谦抑性之间适配不当为人们所诟病，面对多方质疑与困境，亟待为金融刑法的改革、发展提供一种方向的可能性。发挥外汇管理局和央行的监管作用事前预防外汇犯罪。坚持信用指引，完善我国金融刑事立法。避免以经验性总结为司法依据，完善个罪具体适用的相关司法解释。同时，金融刑法应联合行政法、民法，树立“行政处罚在前、民事赔偿为辅、刑事规制在后”的理念，共同应对我国外汇犯罪。

Abstract: China is a foreign exchange trading control country. In recent years, with the technological innovation of Internet finance and the internationalization of the RMB, the traditional financial trading model has undergone earth-shaking changes. The Internet platform trading model of “low cost”, “high efficiency” and “strong integration” has shown a geometric growth trend, and foreign exchange trading has become a new trend. In this context, the financial criminal law is constantly frustrated in the changing Internet foreign exchange crime. The expansion trend of the financial criminal law system indirectly inhibits financial innovation. The inappropriate adaptation between the lag of criminal legislation and the modesty of criminal justice is criticized by people. In the face of multiple doubts and difficulties, it is urgent to provide a direction for the reform and development of financial criminal law. We should give full play to the regulatory role of the State Administration of Foreign Exchange and the Central bank to prevent foreign exchange crimes in advance, adhere to credit guidance, perfect our country’s financial criminal legislation, avoid taking empirical summary as the judicial basis, and perfect the relevant judicial interpretation of specific application of the crime. At the same time, financial criminal law should be combined with administrative law and civil law, establish the idea of “administrative punishment in the first place, civil compensation in the second place, criminal regulation in the last place”, and jointly deal with foreign exchange crimes in China.