Research On Some Issues Of The Criminal Regulation Of Illegal Fund-raising

As a way of financing, fund-raising has been in existence for a long time and has different forms. The “illegal fund-raising” people generally call today traced to the 1990 s. In the face of the financial disorder caused by economic deregulation, China strengthened financial management and control by financial legislation. The country gradually built up the frame of the criminal regulation of illegal fund-raising including the crime of illegal absorbing public deposits and the crime of fund-raising fraud etc on cracking down on illegal fund-raising activities grounds, the concept of illegal fund-raising was also improved by the legislation. So we see that the illegal fund-raising and the corresponding crimes are the special products of the transitional period from planned economy to market economy, in the institutional background of national financial monopoly.The illegal fund-raising has never faded out people’s lives as soon as it appeared. Especially cases like Wu Ying and Zeng Chengjie, pushing it to the forefront again in the background of the economic transformation. On the one hand is the difficulties of private enterprises’ financing, combined with the strong voice of legalization of private financing. On the other hand is the absence of the multi-level capital market, the defects of the credit system as well as the market supervision and the huge risk of fund-raising. Therefore, the criminal law plays an important role in the regulation of fund-raising before the financial reform is finished and the legislation is complete. But under the current thinking of national financial controlling, the criminal regulation of illegal fund-raising has a natural inclination of expanding, and it is obviously contrary to the modestly restraining spirit of the criminal law, which is easily lead to the excessive intervention in the private economy. It causes the helpless situation of the criminal regulation of illegal fund-raising. Meanwhile, there exist many arguments in the adjusting range of the crime of illegal absorbing public deposits and its similarities and differences with other illegal fund-raising crime, which makes the current system of illegal fund-raising crime still not clear and the identification of crime is still difficult.In the paper, solving some actual issues in criminal regulation of illegal fund-raising is regarded as the starting point. Existing documents of illegal fund-raising and framework of criminal law related is regarded as the foundation of analysis. The modestly restraining spirit of the criminal law and the direction of financial reform is regarded as the value guidelines. Then trying to identify key elements of criminal constitution and comb the accusation system of the crime of illegal fund-raising through legal interpretation in respect of criminal legislation on the stability. Therefore, it can be say that the purpose of this paper is not to legislate(although the establishment of new charges may be more scientific), but to find an explanation path under the current legislation to solve actual problem. According to the current legislative situation, it is necessary to explain the “deposit” as ”fund” based on a expanding interpretation in order to build a comprehensive regulation system of illegal fund-raising criminal and avoid the situation of lawless and the indulgence of crime. Then the crime of illegal absorbing public deposits becomes the basic charges of illegal fund-raising crimes. It can regulate either the direct financing or the indirect financing. Meanwhile, to prevent the expansion of the criminal regulation and keep the modestly restraining spirit of the criminal law, the charges should be strictly limited. The limitations depend on a reasonable explanation of the elements of the charges like “the approved”; “the public”; “the future returns” which based on deep understandings of four conditions of the illegal fund-raising---illegality, sociality, publicity, and lure, distinguishing with the normal production and operation, market transaction and legal fund-raising, and to distinguish illegal activities from criminal behavior by identify the amount of fund, the number of people and the economic loss. All the reasonable limitations above aim to reserve space for the development of private economy. The relationship of the crime of illegal absorbing public deposits and other crimes of illegal fund-raising is also needed to be distinguished combined with the key points and elements of the charges. It’s a special relationship rather than a simple save clause.Prevention of financial risk and financial security are important guarantee of the economic transformation. So we should take right attitude to the social function of the criminal regulation of illegal fund-raising. We should not abandon it for its risks of inhibiting the development of private economy. At the same time, we should use it reasonable for the consideration of financial reform and the principle of legality in order to avoid the caprice and expansion of the criminal regulation, and to keep from the financial risk and protect the financial order by regulating the illegal fund-raising which have real social harmfulness.