The Research On Affirming The Crime Of Illegal Absorbing Public Deposits

In recent years, the phenomenon of illegal absorbing public deposits is seen again in many regions of our country, with the features of multi-field, professional and rapid speed of development. If no practical and effective actions are taken to this, there will certainly be greater harm to the society, thus the government adopts severe criminal policies on the crime of illegal absorbing public deposits. However, we can see from the Case of Sun Dawu to the Case of Wu Ying that the judgments to the crime have caused continuous disputes. The bones of contention exist in how to judge the pattern of manifestation of absorbing deposits in any shape or form, how to define the Public, has the collecting money to be used in dealing money, and is there has to be objective harmful consequences to disturbing the financial order. Based on the considerations over these disputes, I will probe the affirming of the crime of illegal absorbing public deposits in detail.Apart from the foreword and the conclusion, I will discuss the affirming of the crime of illegal absorbing public deposits in three parts.The first part, to grasp of issues of the crime of illegal absorb public deposits. First of all, it need to establish the basic nature of the crime of illegal absorb public deposits, namely one of crime of illegal fund-raising. Through the interpretation of judicial interpretation, find out relations between the illegal fund-raising crime, crime of illegal absorb public deposits and crime of fraud in financing. It is concluded that the illegal fund-raising crime is superior concept. So on the cognizance of the crime of illegal absorb public deposits, we should be in the background of illegal fund-raising crime, namely the sequestration behavior must have the nature of illegal fund-raising. Secondly, this paper discusses the basic building blocks of the crime of illegal absorb public deposits. Based on four elements crime constitution theory in China, roughly combs the object, objective aspect of this crime, the requirements of the subject, subjective aspect, and points out the disputed points--the cognizance of the behavior, the understanding of "public" and the crime results. Finally, the characteristics of the behavior of absorbing public savings illegally. Openness its four characteristics, Illegality, openness, inducements and sociality, and indicates the author will solve the question below.The second part, solve the problem of the first part proposed.The first to solve is whether the financial institutions with absorb public deposits can become the subject of this crime. From the banking law, the purpose of this crime legislation, equality as well as the market main body status, it is concluded that financial institutions with absorb public deposits, Should be punished by criminal law, if it has illegal behavior of sequestration. Secondly, to solve the identification problem of the objective aspects, namely the "illegal absorption","disguised absorbing" the connotation and the manifestation of the use of funds, to understand and grasp, disrupts financial order. The author believes that "explain" could not complete list in sequestration of the behavior of all, but whether illegal fund-raising means how high, how to cancel, as long as grasp its essentials, can accurately identify and restrain by law. The authors abandon "the use", capital "to pay return","most people are not given" and other traditional mode of cognizance, were found "forms of disguised absorbing" form the two aspects of financing and openness. The author thinks that in the judicial practice through the "investor passive investment" to identify illegal financing nature more operable. investors put up the money not to buy goods or services but in order to get fixed, not risk of high returns, and the benefits achieved depends entirely on the financing or third party action, don’t reflect the investor will, also don’t need to supervise; and on credit interest, two kinds of transaction forms as an example, proves the feasibility of the method.The third part, grasp the limits of the crime of illegal absorbing public deposits and several common legal financing activities, and distinguishing from other illegal fund-raising crime. The boundaries of the crime of illegal absorbing public deposits and legal borrowing is funded investment, financing to different objects, the crime of illegally absorbing public savings investors to investment is not controllable, not intimate relationship financing object is no economic strength, no investment experience, and absorb deposits; instead the folk investment properties do not have investment, and absorb deposits; instead folk investment properties do not have investment, financing, not arbitrary expansion of scope, financing more acquaintance model, not constitute a crime.Innovations and shortcomings of this article: although the crime of illegal absorbing public deposits is an old theme, with numerous research over it. I discuss this in a new form, especially on the affirming of absorbing deposits in any shape or form, that is I apply the reverse thinking, different from the connatural way, to judge the nature as raising funds of the crime of absorbing illegal public deposits from the point of view that whether the public invest passively or not, and to define the Public from the investors’(the victims’) financial capacity, their investment experience and their relationship with the money-collector. Also, in discussing the crime of illegal absorbing public deposits’ boundary to other legal capital raising, and its difference between it and other crimes of collecting money, I apply the research results (the innovations) of this article’s theory part into the comparison process, which verifies this article’s innovations in a better way and makes it easier to realize in juridical practice. However, as the limited knowledge and experience, I may have problems as innovations not sufficient, discussing not complete and others in this article, so please feel free to point out and correct it if you have better ideas.