Research On Several Problems Of Judicial Application Of Crime Of Illegally Absorbing Public Deposits

With the rapid development of market economy after China’s reform and opening up, a large number of small and medium-sized enterprises are emerging, their development and expansion needs to get more financial support.However the defects as a result of the planned economy system before the implementation of the reform and opening-up of our country, the credit management system of our country is very stiff, state-owned banks generally only lending to large and medium-sized state-owned enterprises, making the much-needed funds small and medium enterprises difficult to gain financial support from formal financial institutions. On the other hand, with the development of economy, people also accumulated a large number of idle funds, and for these state funds and no corresponding policy be ease, making people to invest.The collision between small and medium-sized enterprises who are badly in need of funds, but difficult to access form the formal channels and a large number of increasingly accumulated of idle private capital, the private finance arises at the historic moment. The emergence of private finance plays a very important role in promoting the development of private enterprises, but the behavior of illegal fund-raising which would damage public safety is increasingly common. In addition, the defects of the legislation of our country which makes this kind of behavior, especially the illegal absorption of public deposits, have a lot of controversy in theory and judicial application.Such as the crime of illegal absorbing public deposits was often used to combat the crime of illegal fund-raising, which leads to the emergence the tendency of judicial application expanding. To this end, the author through arrange and research of the previous works, published journal articles and other information, analyze some controversy of the crime of illegal absorbing public deposits in the judicial application.In this paper, on the basis of the analysis of Lin Qiang’s case, Liu Zhengqiang and Lai Guanglong’ case, Pan Shaojiang and Lou Shu Yang’case, through the legal principle theory of law analysis, try to make the problem about the subject scope and objective aspects of the crime of illegal absorbing public deposits to be clear and definite. At the same time, define this crime with the private lending and the crime of fund-raising fraud accurately, and based on this to put forward some related suggestions for perfecting. The body part has three chapters: the first chapter summarizes the basic facts and the verdict of the three cases, then find out the focus of dispute, raise questions. The second chapter mainly points out the problems in the judicial application of the crime of illegal absorbing public deposits, including the subject, the objective aspect, the definition of this crime and private lending and the crime of fund raising fraud. Then combined with the three cases which proposed by the first chapter for legal principle analysis. Summarizes the relevant experts and scholars’ comments on the above issues in this field, and then give my own views and reasons. The third chapter based on the discussion and analysis of the previous two chapters,and combined with the criminal policy of combining punishment with leniency and in adhering to the restraining principle of criminal law, aiming at the problems existing in the application of the crime of illegal absorbing public deposits in our country, put forward some suggestions to perfect the crime of illegal absorbing public deposits, propose that make a clear identification of ‘openness’ and ‘family, friends or the unit internal personnel’,at the same time add the crime of illegal fund-raising and modify the description of the crime of illegal absorbing public deposits of the crime.