1、北京建筑大學法學本科畢業論文外文資料翻譯班級：_（三號楷體，下同）_姓名：_學號：_外文出處：_(用外文填寫)_ _附件：1.外文資料翻譯譯文；2.外文原文指導教師評語： 簽名：_ 年 月 日注：請將該封面與附件裝訂成冊。附件1：外文資料翻譯譯文譯文標題（3號黑體，居中）×××××（小4號宋體，1.5倍行距）××××××××××××××××××××

2、×××××××××××××××××××××××××××××××××××××××××。（要求不少于3000漢字）當吳英違約貸款3.8億元的案例報道時，大家的第一印象可能是11日的銀行包括Lin

3、Weiping同情受害者需要國家刑法的公正。然而,全面、細致的檢查顯示,這些11銀行貨幣經紀人在影子銀行和高利貸投機者違法的。證據如下:第一,從11受害者的經驗和專業背景,包括林,他們都是經驗豐富的在非正式融資影子銀行豐富的知識。人的印象可能是這些11受害者包括林被銀行或投資者到本色集團由吳英。然而,這些11受害者包括林熊維平并非普通人但quasi-professionals長期從事非正式融資。以林為例,他就把4.7億元借給吳英。考慮到他們的豐富的放高利貸經驗和相對良好的判斷風險,他們應該意識到巨大的利潤和機會一方面和潛在的風險和陷阱在金融市場和了解資本市場的基本規則,也就是說,負責自己的利潤

4、和損失。第二,從11受害者的資本來源包括林熊維平借給吳英,大部分基金從別人。4受害者包括林熊維平,楊weil,YangZhiang,楊Weijiang籌集資金直接從大約120人。120年在一個金字塔,這些奇怪的人也從銀行籌集資金以較低的層,地理位置覆蓋東陽市,浙江義烏,奉化、麗水、杭州和其他地方。它11受害者包括林熊維平有別于普通銀行交易資金專用基金,它們從別人借了一筆錢,然后立即借給吳英。對于這些11錢經紀人寄生在別人的資本,他們迫害非法吸收公眾存款罪的刑事責任。第三,收縮貸款利息在11受害者包括林熊維平吳英顯然超過了最高國家機關規定的非正式融資,這是高得離譜,過度投機。根據發現的事實發表的

5、書面句子編碼ZHEJINGXIN2CHU第一行,“投資”的貸款利息11直接受害者包括林熊維平可以交談的最低30%,60%,80%,100%,甚至400%的最大,這是驚人的。例如,在證人的證詞林熊維平,吳英借用他的總額4億元人民幣的利率同意每天40元/每10000元幾輪從2006年3月,融資的借口下注冊的公司。證人的證詞朱Hangfei revealedthat吳英承諾在一年內100%的投資回報率的投資計劃。據被告人吳英,她當她借來的錢來自于獎金協議Yasu和其他人來說,這是一個季度的獎金率為30%,分別為60%和80%。被告人吳英的聲明證實,她借一些3000萬元從楊張50元的和其他國家的利率或

6、45每10000元。第四,主觀方面的認定11受害者包括林,他們都對吳英是否會有僥幸心理償還本金和利息。一方面,他們知道放高利貸可以像淬火渴望用毒藥而無法維持借款人作為實體的資金鏈增長不會在長期穩定的高利潤率現金支付高利息。另一方面,他們推測,吳英的資金鏈會不會崩潰之前,他們可以返回本金和巨大的利息收入。很明顯,11受害者包括林熊維平預期吳Ying5s違約和猜測自己的受害的可能性不會很大的僥幸心理。通過所謂的受害者的身份在吳英案,發現:這些受害者是不同于那些在司法實踐中常見的犯罪,而不是刑事保護的迫切需要,呈現弱勢群體。從本質上說,他們是放高利貸投機者計算利弊在這放高利貸的交易和交易風險的巨大收

7、益自愿賭博。這些投機者就像貪婪的資本家在19世紀中,卡爾·馬克思在他的資本:如果100%的利潤,資本家們會不顧一切地冒險,如果200%的利潤,資本家們會無視法律;如果300%的利潤,資本家會踐踏者的世界。根據傳統刑法關于本構的處方要求集資詐騙犯罪,吳英的規定定罪。根據金華中級人民法院的聽證會和哲江澤民高級人民法院,吳英被判泄露11受害者包括林熊維平3.8億元通過誤導宣傳,與非法占有的目的隱藏她的巨額債務,偽造使用資金,并承諾高利息或投資回報。依照本構要求conventionalcriminal法律的欺詐犯罪和法院發現,吳英的行為構成集資詐騙特別嚴重的情況。然而,Viktimodogm

8、atik解釋本構要求在吳英集資詐騙犯罪和考試的案例可以證明我們的質疑的決定融資欺詐。他們闡述如下:首先,根據交互原則,受害人認知錯誤是構成要件之一。根據處方的中國傳統刑法構成要件,認知錯誤不是必需的。集資詐騙的構成要件在傳統刑法規定:任何行為,個人或組織籌集基金的質量或在大量騙取財物非法占有的目的,偽造事實,隱瞞真相。顯然,這只是定義融資犯罪從犯罪的角度而不考慮受害者和犯罪之間的交互和區分犯罪,從受害者的角度界定。通常是最適用的領域Viktimodogmatik、欺詐犯罪也是最合適的試金石和鍛煉的這一理論。自1970年代出生在德國,阿梅龍教授,教授Schunemann和Hasseme博士努力應

9、用受害者的連帶責任的原則受害者研究詐騙犯罪的本構要求的解釋。尤其是Viktimodogmatik高度重視的研究限制解釋認知錯誤作為本構的要求。欺詐是典型的基于交易的犯罪或犯罪學的關系,具有相互影響的受害者受害的先決條件。受害的基于事務的犯罪,犯罪必須面對面與受害者或其他類型的通信和交互。10在中國刑法,集資詐騙可以追溯到詐騙作為一種特殊的類型,因此前提之間的相互作用在這種關系和刑事犯罪受害者,Viktimodogmatik為準。根據摘要Viktimodogmatik解釋,欺詐和融資欺詐應當體現的客觀和互動存在欺詐和欺騙,也就是說,它需要篡改和隱瞞事實的犯罪和認知錯誤假設的受害者。的詐騙犯罪行為

10、沒有受害者的認知錯誤,至少應當不構成欺詐,欺詐的成就。因此,欺詐行為在客觀方面的實際結構如下:泄露通過演員陷入認知錯誤對應,處理基于屬性的認知錯誤,演員或第三方擁有的屬性,受害者遭受財產損失。第二,11受害者吳英案件不相信她偽造事實與認知錯誤。根據Viktimodogmatik,如果受害人詐騙者的帳戶上的特定懷疑的事實或值得信賴,但欺騙是因為某些動機(如對假裝同情乞丐或投機大師塊廉價畫廊),刑法不得呈現保護受害者知道說欺詐。11在披露的細節的情況下,吳吟了偽造事實,隱瞞真相:她夸張的業務實力,收購的廣告牌在Dongyi路本色集團的廣告活動,本色集團的小冊子和誤導性信息傳播,展示了珠寶在辦公室,

11、等吳陰藏從該銀行的事實她巨大的債務問題。吳吟偽造借貸的動機,如擴大石油業務的名義,投機的借口下商業地產和未完工的建筑。然而,根據Viktimodogmatik,11受害者包括林熊維平具體懷疑吳英的虛假聲明沒有落入認知錯誤。媒體透露,一些犯罪的受害者表示,吳英沒有透露給他們,他們只是想進行投資。事實上,他們對她的聲明的真實性,使用基金,商業活動,他們在某些點有一些懷疑。簡而言之,受害者不相信偽造事實與吳英但對真理。在缺乏認知錯誤,這種情況下不符合構成要件的集資詐騙。第三,這些11放高利貸投機者包括林熊維平沒有認知錯誤當他們借給吳英。正如上面提到的,這些受害者是絕對的高利貸。欺詐在投機領域的判斷很

12、難和那些在日常生活中一樣。的欺詐行為發生在日常生活中,認知錯誤僅指那些受害者的基本事實。然而,在投機行為的背景下,受害者的認知錯誤是兩個褶皺:第一,基本事實;第二,在預期利益和最終結果。在投機,貸款人不能說有一個認知錯誤如果沒有這樣的一個錯誤在基本事實或預期利益和最終結果。12在吳英案,當時11銀行借給吳英,最后他們應該預見到不同的場景:回到本金和利息大賺一筆,回到本金和利息的一部分,只讓它甚至;獲得本金沒有利息收入的一部分損失。他們nocognitive誤差對預期利益。但是他們的僥幸心理驅使他們進入高利貸投機和賭博一樣。在最后的分析中,大部分的受害者的判決書吳英在高利貸投機資本經紀公司。盡管

13、他們具體懷疑他們是否能取回本金和利息,他們積極參與到組織的金融賭博吳英在他們的僥幸心理。他們有清醒的頭腦在芯片(即基本事實)和結果(即預期利益,最終結果),因此他們不能說已經泄露。在光、刑法保護需要渲染受害者正在減弱或丟失,和融資的決定很難明確和令人信服。它還必須指出,盡管吳英案的受害者沒有認知錯誤,不需要受刑法保護。吳英的行為不構成集資詐騙,她違反了國家金融行政法規的借口下吸收公眾存款資金公司或啟動項目,等,破壞當前的金融制度的構成要件與非法吸收公眾存款。附件2：外文原文（復印件） A DISCUSSION ON CRIME AND PUNISHMENT OF WU YING FU

14、ND-RAISING FRAUD FROM THE PERSPECTIVE OF VIKTIMODOGMATIKSince the 1970s when Viktimodogmatik developed gradually in Germany, it has advocated to judge the crime from the perspective of victim rather than only from the actor in conventional criminal law. In the case of Wu Ying fund-raising fraud,11 d

15、irect victims were joint usury speculators without cognition error, therefore it does not meet the constitutive requirement of fund-raising fraud. Considering the obvious fault of the victims, Wu Ying shall not be sentenced to the death penalty or a death sentence with reprieve.Despite the fact that

16、 the original death sentence was finally commuted in the Wu Ying Case under the eyes of the public,1 it is still provoking and controversial. The mainstream of public opinion does not agree with the judicial decision, including many experts on jurisprudence and economics that question the legitimacy

17、 of the decision in the case hereof, which necessitates the further discussion on the jurisprudence behind this case. It must be noted that, the previous discussions of jurists and law enforcers have all fallen into the category of interpreting and verifying on charts in an indictment and constituti

18、ve requirements with the focus on whether Wu Ying had the purpose of illegal possession, falsified facts and concealed truth, and launched the fund-raising scheme to the mass, etc. Generally speaking, these research findings are neither convincing nor creative and enlightening, as they have been con

19、fined by the conventional theoretic paradigm and argumentation. Based on the significant Viktimodogmtik, this paper is an initiative to, from the victim's perspective, shed light on the crime and punishment of this case that distinguishes from generic fraud and fund-raising fraud.I. BASIC THEORI

20、ES OF VIKTIMODOGMATIKViktimodogmatik, or victim's dogmatic law in Chinese translation, is a sub-discipline of new criminal law dogmatic that could date back to 1970s in Germany, its representatives include Professor Amelung, professor Schünemannü and Dr. R. Hasseme. Prof. Schünema

21、nn has been the most prominent contributor. In 1977, Prof. Amelung issued a paper on the Fault and Doubt of Victim in Fraud Crime on a magazine GA. In the same year, professor Schünemann presented his paper at a criminal law workshop, voicing his opinion on Ultima Ratio Applicability in the Cri

22、me of Divulging Private Secrets in article 203 of German Criminal Law (StGB) which was later issued on Zeitschrift für die gestate Straightforwardness in 1978. The publication of these 2 papers ushered in the establishment of criminal law dogmatic.2 In 19821, Dr. Hasseme published the book Nece

23、ssity of Protection on Victim and Criminal Law Dogmatic, and Its Application into Interpenetration of Cognitive Error in Article 263 of StGB based on his doctoral dissertation under the supervision of professor Schünemann, which was a first study on Viktimodogmatik in a relatively systematic ma

24、nner.3 The fundamental of Viktimodogmatik is that, based on the auxiliary principle of criminal law, it is unnecessary for the criminal law to render protection when the victim is ejected to and possible to exercise self-protection to avert the infringement on his legal interests.4In the development

25、 of Viktimodogmatik, two typical cases were sensational: the first, a defendant was decided by German Federal Court of Justice not guilty of rape on Jan 7,1981; and the second, a defendant was decided by German Federal Court of Justice only guilty of manslaughter but not murder.5 The decisions of th

26、ese two cases by German Federal Court of Justice commuting the original sentences of local courts were unconventional and based on Viktimodogmatik, which have become the landmark in development of Viktimodogmatik in Germany.Viktimodogmatik has been proposed based on the victimology that emerged in t

27、he 1940s, which is in essence the interaction between criminal and victim and the joint liability principle. The conventional criminology holds the view that criminal activity is the result of actor's unitary free will. However, the victimology, a branch of modern criminology, reveals in the stu

28、dy that crime is not the result of the unitary free will of the criminal alone, but theoutcome of interaction between the criminal and victim. In many circumstances, if without the participation or instigation of victim, the criminal acts can hardly be committed, and even being without a criminal at

29、 the first place. The fact is that the crime and victimization are caused not only by the victimization of criminal but also by the “collaboration” of the victim. It was pointed out in a book, A discussion on the Mutual Effect of Criminal and Victim, by Hans Von Renting, a German criminologist in 19

30、41,“in the process of criminal act, victim is no longer a passive object, but a positive subject. In the whole process of initiating and committing the criminal act, the criminal plays a role.”6 In his opinion, some victims of fraud crime are “not worthy of the legal protection due to their impurity

31、 and the fact that they would fall victim to the fraud that can hardly defraud people with normal intelligence.”7Based on the theory of “criminal partnership” between criminal and victim, Professor Amelung, professor Schünemann and others founded Viktimodogmatik, which was based on victimolo, a

32、 sub-branch of study field of criminology, and applied the theory on relationship of criminal and victim into criminology, thus enabling its enrichment and development.The core of the Viktimodogmatik is the principle of possibility of self-protection of victim (Schutzmoglichkeit) and the necessity t

33、o protect (Schutzbedurftigkeit). Viktimodogmatik advocates that criminal act must be judged according to criminal law from the angle of the victim rather than purely from the perspective of the actor as in conventional criminology. The evaluation on whether an act constitutes a crime shall consider

34、not only whether the actor “must” and “need” to be punished, but also whether the victim on the opposite of the act “must” and “need” to be protected by criminal law.8 When the victim is unable to exercise self-protection, the necessity to render protection shall be increased. However, when victim p

35、articipates or even raises the risk intensity and has a joint effect on crime, it reduces the necessity of protection. In a case where the autonomy of a victim's will increases the risk intensity and it is ejected that the victim can exercise other acts, the necessity of protection shall be reli

36、nquished. The role of the principle of the possibility of self-protection of victims and necessity of protection can be summarized as follows:“when an effective self-protection is possible and ejected, the adequate legal interest infringement on the part of the actor shall not exist, thus making the

37、 victim unworthy of protection.”9The principle of possibility of victim's self-protection and necessity ofprotection is engineered to encourage the victims to be accountable for themselves. Everyone is supposed to be held responsible for the consequence of his own act, and victims are no excepti

38、on. Based on the recognition of the interaction between offender and victim, the victim shall bear a responsibility commensurate with his role in the crime. If there exists causality between the damage occurred and the victim's act under free will, his loss shall be borne by himself commensurate

39、ly.Ever since the founding of Viktimodogmatik, it has been employed in interpreting the constitutive requirements of criminal cases against the specific provisions of criminal law, which can be best exemplified by article 263 and 203 in StGB on divulging private secrets. With the development of Vikt

40、imodogmatik, the academic field has gradually reached alignment on applicable fields of Viktimodogmatik that: it cannot be applied to all types of crime, but mainly in those fields premising on the interactive relationship between criminal and victim, such as fraud, manslaughter, mayhem, rape, invas

41、ion of privacy, insults, etc., which have been institutionalized as one of the restrictive interpretation principles on constitutive requirements of specific provisions of criminal law. Meanwhile, Viktimodogmatik has gone beyond the study field of fraud crime or other specific provisions of criminal

42、 laws and touched upon the impediment of illegality, victim's promise and other general provisions of criminal law.II. TO IDENTIFY THE VICTIMS IN WU YING CASE: USURY SPECULATORSNow let us examine the controversial Wu Ying case from the Viktimodogmatik perspective. Wu Ying was finally decided gui

43、lty of fund-raising fraud crime and sentenced to death with reprieve. In china's criminal law, fund-raising fraud crime is a special fraud spinning out of the fraud crime, bearing the same crime structure as that of fraud crime. Therefore, both of them shall be applied to the typical and empiric

44、al fields of Viktimodogmatik.The prerequisite of examining Wu Ying case based on Viktimodogmatik is to profile the direct victims in Wu Ying case. According to the judicial authority, her illicit fund-raising exceeded 770 million RMB from 11 lenders such as Lin Weiping, Yang Veiling, Yang Weijiang,

45、Yang Zhiang, Jiang Xinxing, Zhou Zhonghong, Ye Yisheng, Gong Yifeng, Ren Yiyong, Mao Xiati, Gong Suping etc.When the case was reported, Wu Ying was in default of a loan of 380 million RMB. The first impression might be that 11 lenders including LinWeiping are sympathetic victims who are in need of s

46、tate criminal law for their justice. However, a holistic and meticulous examination would reveal that these 11 lenders were money brokers in shadow banking and loansharking speculators against the law. The evidences are as follows:The first, judging from the experience and professional background of

47、 11 victims including Lin Weiping, they were all well seasoned in informal financing with rich shadow banking knowledge. One's impression could be that these 11 victims including Lin Weiping were lenders or investors into Ecru group run by Wu Ying. However, these 11 victims including Lin Weiping

48、 were not ordinary people but quasi-professionals long engaged informal financing. Taking Lin Weiping for example, he alone lent 470 million RMB to Wu Ying. Given their rich loan sharking experience and relatively good sense of judgment on risks, they should be aware of the enormous profit and oppor

49、tunity on one hand and the potential risks and traps on the other in the financial market and understand the basic rule of capital market, that is, being responsible for one's own profit and loss.The second, judging from the source of capital that the 11 victims including Lin Weiping lent to Wu

50、Ying, most of funds were raised from others. The 4 victims including Lin Weiping, Yang Weiling, YangZhiang, Yang Weijiang raised funds from some 120 people directly. In a pyramid, these 120 odd people also raised funds from the lenders at lower tier, geographically covering Dongyang, Zhejiang provin

51、ce, Yiwu, Fenghua, Lishui, Hangzhou and other places. It distinguishes the 11 victims including Lin Weiping from ordinary lenders financing the deal from proprietary fund in that they borrowed an amount of money from others and then lend to Wu Ying immediately. For these 11 money brokers parasitic o

52、n others capital, they were persecuted for criminal liability of the crime of illegally absorbing public deposits.The third, the contracted loan interest between 11 victims including Lin Weiping with Wu Ying obviously exceeded the maximum prescribed by the state organ for informal financing, which w

53、as ridiculously high and excessively speculative. According to finding of facts in sentence in writing coded ZHEJINGXIN2CHU No.1 published on the line, the loan interest of “investment” of 11 direct victims including Lin Weiping could be conversed into a minimum of 30%, and up to 60%,80% and 100%, o

54、r even a maximum of 400%, which was startling. For example, in the testimony of witness Lin Weiping, Wu Ying borrowed from him a total amount of any 400 million RMB at an agreed daily interest rate of 40 RMB per each 10,000 RMB in several rounds starting from March 2006, under the pretext of financi

55、ng for the registration of the company. The testimony of witness Zhu Hangfei revealedthat Wu Ying promised a return on investment of 100% in one year investment scheme. According to defendant Wu Ying, she had a bonus agreement when she borrowed money from Yu Yasu and others, which was on a quarterly

56、 basis with a bonus rate of 30%,60% and 80% respectively. The statement of defendant Wu Ying confirmed that she borrowed some 30 million RMB from Yang Zhang and others at an interest rate of RMB 50 or 45 per 10000 RMB per day.The fourth, in terms of subjective cognizance of 11 victims including Lin

57、Weiping, they all had fluke mind about whether Wu Ying would pay off the principal and high interest. On one hand, they knew that loan sharking could be like quenching thirst with poison which could not sustain the capital chain of borrower as entity growth would not cash in long term stable high pr

58、ofitability to afford the high interest. On the other hand, they speculated that the capital chain of Wu Ying would not collapse before they could have their principal and huge interest income returned. It is evident that the 11 victims including Lin Weiping had anticipated Wu Ying5s default and spe

59、culated the odds of their own victimization would not be great under the fluke mind.Through the identification of the so called victims in Wu Ying case, it is found out that: these victims are different from those in common crimes in judicial practice and not in urgent need of criminal protection th

60、at is rendered to vulnerable group. By nature, they were loan sharking speculators calculating the pros and cons in this loan sharking deal and trading off the risk for huge gains in the gamble voluntarily. These speculators were just like the greedy capitalists in the 19 Century depicted by Karl Mar