Research On Criminal Law Regulation Of Financing Crime Under Financial Innovation Environment

In recent years,with combinations of civil lawsuit,administrativefinancial regulation and criminal sanctions,our government has cracked down on illegal financing,and to some extent,the growing trend of illegal financing and its derivative hazards have been retrained.However,illegal financing still accounts for a large proportion in financial crimes inChina and evolved into new type of crimes under the cover of financial innovation,such as the socalled e rent,bitcoin financing,P2 P network credit financing and so on.As for the criminal law system of illegal financing,the previous discourses pay more attention to the idea of financial restraint and supervision,the limited financing channels,the multiplicity of illegal pattern,the difficulty of judicial cognizance,and many governing measures toward financing crime.while previous studies relatively lack of inspection on financial technology and the inherent mechanism from the perspective of financial innovation,which will result in insufficient or unintentional neglect in criminal legislation and judicial cognizance concerned financing crimes in the process of the formation of financing crime,evolution and judicial determination.Therefore,this paper tries to explore a new way to study the modern transmutation of the illegal financing crime and the normative mechanism of its judicial cognizance in terms of the theoretical basis and operational mechanism of finance.Since this paper will study finance crime in the context of financial innovation,it is very necessary to define financial innovation,to classify its types and contents and to point out its theoretical foundation.Meanwhile the technological and systematic risks induced by financial innovation as well as financial also be discussed in this paper.On the basis of streamlining and summarizing the current situation of financing crimes in China,we can approximately figure out how financial innovation affect our law and regulations of financial with reference to overseas legislative experience and judicial practice.Firstly,it put forward new issue on criminal legislation and judicial identification regarding financing crimes.On the other hand,it discloses the existing problems in current laws and regulations of financing crimes.For the research of financing crime under the financial innovation environment,we must clarify the theoretical basis and guideline of criminal law financing crime.And the criminal policy of leniency and strictness can provide value guidance and value trade-offs for determining the criminal circle and the discretion of financing crime,thus increasing the flexibility of the existing normative system to deal with the illegal financing behavior.Through streamlining and summarizing regulations and experience concerning the judicial cognizance of financial crimes,the author finds out that the criminal law norm and the rule of judicial cognizance(part of which is determined by the judicial interpretation)conflict with the basic theory of criminal and even violate each other,such as the deficiency of the principle of penal modesty,the presumption of illegal possession mentality.For instance,the doer,who put money into normal production and operation of the company with no approval from authority,was finally convicted of illegally absorbing public deposit,In the understanding of the constitutive elements of the crime of financing crime,the legal principle of legality and the inconsistency of the criminal law’s substantive interpretation view appear.Although previous discourses have mentioned such conflicts and violations,few conduct systematic and complex research on such issues.This paper pays attention to abovementioned conflicts and violations,expecting to rationally analyze and eliminate these conflicts and academic contradictions.One of the motives of financial innovation is to evade the restriction of existing financial supervision measures.While some financial investment acts obtain excess profits,they also induce local or systemic financial risks.It can be said that this kind of "voluntary risk" behavior will certainly has a decisive impact to seting the constitutive requirements of financing crimes,the choice of penalties and taking financial risk prevention measures under the financial innovation environment.Consideration of financial innovation in criminal legislation of financing crime has been neglected by previous research institutes.This article combs and analyses the problems existing in the regulation scope of financing crime under the environment of financial innovation,such as the lagging of the legislative concept of financing crime,the expansion of the explanatory theory of non-addiction crime,the scientificity of the constitution of part of financing crime,the effectiveness of part of financing crime,the poor regulation effect of the pre-law of financing crime,and so on.From the establishment of the legal interests of the financial transaction order of financing crime and the shift of the concept of interests and legal interests,the basis and requirements of financial risks defined in the scope of criminal law regulation of financing crimes,etc.,the scope of criminal law regulation of financing crimes should be established,and the systematic excavation of legislation related to financing crimes in China and the normative prospect of the future direction of law amendment should be carried out.The legislative concept of financing crimes should be changed,the requirements of new economic forms should be implemented,optimization and prepayment should be optimized.Suggestions for perfecting the legislation of financing crime include the connection of financial law,perfecting the legislative model of subsidiary criminal law of financing crime and adding new charges of financing crime.From the perspective of finance and law,one of causes,attributing to financing crimes is the implement of financial restraint,which emphasize on governments leading role to ensure financial safety;which depress financial innovative activities to some extent.In other words,ordinary people have no way to invest or manage their money.Compared to those official finance,these non-official finance organizations survive and grow in this gray zone,which is full of new varieties of financial services,system and unusual financial measures.To promote the development of financial industry,the trial and error of informalfinance are allowed to some extent,which may innovate financial forms.While some lawbreakers may take advantage of these non-official financial organizations to do illegal financing.In this regard,this paper first introduces the development and evolution of the crime of informal financial financing in China,and discusses in depth the development of informal finance to strengthen the function of "capital pool" in the identification of financing crime,the reconstruction of the constitution of the crime of illegally absorbing public deposits,the explanatory basis and limits of the determination of the crime of fund-raising fraud,the determination of the nature of the crime of corporate equity financing and the accomplice structure.Four aspects of normative influence are put forward.Finally,the basic conception of criminal law regulation of illegal acts of informal finance is put forward,namely,clarifying the legal status of informal financial financing,improving the regulatory system of informal financial financing,limiting the scope of attack of current financing crimes,clarifying the boundary of criminal law intervention in informal financial financing,appropriately amending the constituent elements of existing financing crimes,and optimizing the establishment of statutory penalty for partial financing crimes.The judicial identification of financing crime,especially the judicial identification of new financing crime,has always been the focus and difficulty of the research and judicial practice of financing crime.This paper focuses on the impact of innovation of financial business and financial instruments on the identification of financing crimes,and chooses the typical types of financing crimes such as P2 P online loan financing,equity crowdsourcing financing and illegal third-party payment financing as research samples to study the technical characteristics of P2 P online loan platform,the connection between the investment attributes of equity crowdsourcing and financing crimes,and the criminal structure of equity crowdsourcing.Formed normative disputes and "typification" risks,as well as financing risks induced by third-party payment,have a normative impact on the judicial identification of these new types of financing crimes,and accordingly put forward the basic idea of constructing a new criminal law regulation system of financing risks.