Research On The Crime Of Fraudulent Fund-raising From The Perspective Of Informal Finance

The crime of fraudulent fund-raising is a crime of financial fraud, has the characteristicsof the great involved subject and the large number of victims,it harms to the society and thenational financial order seriously, becomes the key of combating financial crime in ourcountry. In recent years, the illegal fund-raising is difficult to prohibit, the number offund-raising fraud cases surged, and the involved subject is on the rise, which is worthy ofpondering. This paper attempts to start from the financial background of informal financingin china, explores the social and financial reasons which generate the crime of fraudulentfund-raising, analyzes the legislative and judicial status quo, and puts forward to suggestionsto improve the current situation of legislation and judicial, in order to find effective ways toprevent and punish the crime of fraudulent fund-raising.This paper is divided into three parts: introduction, body and the conclusion. The maincontents are as follows:The first part: the overview of informal financing. This part mainly introduces the mainforms of private financing, including private lending, underground banks and legitimateprivate financial organizations; analyzes the status of private financing and causes of thefinancial fraud. Through the analysis of the problems exposed by informal financing, find theroot of the crime of fraudulent fund-raising. That is said the rising of fund raising is closelyrelated with imperfect financial system and financial background.The second part: interpretation of the crime of fraudulent fund-raising of the currentcriminal law provisions. This part analyzes the connotation of “the purpose of illegalpossession” from the perspective of fund raising. The crime of fraudulent fund-raising is anabsichtsdelikte, of which the subjective state of mind can only be directly intentional andformed in behavior before or in the course of conduct. The author lists three kinds of“behaviors by means of fraud”, and points out that the behavior could be identified as fraudmethod as long as the actor take fictional facts or conceal the truth to cheat. In addition, theauthor also analyzes “illegal fund-rising” and “large amount”. Through the analysis of aboveconstitutive requirements, this part intends to grasp the meaning of legislation.The third part: the judicial recognized of the crime of fraudulent fund-raising. This partexpounds the demarcation line of crime and non crime in four aspects, including how to identify economic criminals, how to presume “the purpose of illegal possession” and how todistinguish the crime of fraudulent fund-raising and private lending. The foundation ofdistinguishing between the crime and the innocence is the restrictive principle of criminal law.The part also discourses the difference between the crime of fraudulent fund-raising and thecrime of fraud, the crime of fraudulent fund-raising and the crime of illegal absorbing publicdeposits.The fourth part: the legislative defects of the crime of fraudulent fund-raising. Overall,financing criminal regulation system is disordered, there doesn’t form reasonable penaltygradient among the various charges of illegal fund. On the legislation, the crime of fraudulentfund-raising has legislative defects, such as the limited standards of constituting a crime, thedefective penalty configuration, and impractical judicial interpretation.The fifth part: the judicial deviation of the crime of fraudulent fund-raising. Because ofthe complexity of the real and financial crimes, there is a misreading of the legislative intentof the crime of fraudulent fund-raising in the judicial practice, namely, the weakening of the"purpose of illegal possession" and standard deviation, resulting in the judicial practice oftendeviates from the legislative intent. At the same time the judicial practice also has theproblem of undulating attack range, which resulting in excessive or ineffective combating.The sixth part: reasonable constructing of the regulatory system of fund raising behavior.Establish the multi-level system of legal regulation with the principle of comprehensivemanagement. Improve legal provisions with the principle of legislative generality anddetailed judicial interpretation. Improve the non-criminal law and reform the financial system.From the above aspects, the author carries out the ways of prevention and punishment of thecrime of fraudulent fund-raising.