Research On The Entity And Procedure Differences Of Private Lending And The Crime Of Illegal Absorbing Of Public Deposits

On November12,2013,《the central committee of the communist party of China on comprehensively deepen reform certain major issue decision》(hereinafter referred to as 《Decision》) was agreed by the third plenary session of the18th session of the central committee of the communist party of China. With unprecedented intensity of reform, embodies the new leading group’s determination and courage to solve a series of major problems in the process of the current development in our country.《Decision》 points out, to perfect financial market system, expandOpening up to both domestic and foreign financial industry, under the premise of more regulation, allowing qualified private capital in accordance with the established small and medium-sized Banks and other financial institutions. Promoting the legalization and transparence of informal finance has become the consensus of the government, enterprises and the mass.In recent years, on the one hand, the small and medium-sized enterprises’financing difficulties has become the biggest bottleneck which limit theirs’development. With the background of the national financial policy and the social capital pressure, low level of scale and credit, weak anti-risk ability and insufficient mortgage of property to guarantee, those internal causes of small and medium-sized enterprises inherent, cause they are difficult to get bank loans, which makes it has a pressing need on private capital. Informal finance with its flexible starting mode, less strict requirements, is so heavily favored by small and medium-sized enterprises. On the other hand, due to the resultant force of the feature that on-going accumulating but dissociative of the private capital, and the increasing financing concept of the mass but investment channel is not smooth, under the temptation of high interest rates, private lenders will tend to lend out their idle fund, even put the family savings into capital market circulation, with ignorance of the risk of investment. And at this stage, with the background that the financial market system faces innovation and market supervision is still has loopholes, the crime of illegal fund-raising cases, represented by the crime of illegal absorbing public deposits are rapidly increasing, in individual economy developed areas even appear the trend of scale and crisis of illegal fund-raising. The sharp increase in private lending and disputes and difficulties in practical processing highlights the lack of law related, one of the important reasons of the crime of illegal absorbing public deposits is difficult to control, is that the existing laws and regulations to legitimate private lending and the crime of illegal absorb public deposits with no clear boundaries, which lend to controversial issues in theoretical circle and very different standard scale in different court processing around the similar cases. As a result, on the one hand, not only causing judicial authority damaged, also make to people on both sides of the lending activities carried out for the respective behavior with lacks stability and clear expectations, which will block legitimate private lending activities. On the other hand, that may encourage the illegal ones’fluky psychology, with the name of legal borrowing which doing the illegal fund raising in reality, disturbing the country’s financial order and harming public property rights.In view of the above situation, this paper takes a series private lending cases recently accepting and hearing by one of Jinan’s district people’s court as an example, through determining connotation of the private lending and the crime of illegal absorbing public deposits, discussing entity and process boundaries, in order to provides referential advice for disputes processing of this kind of private lending in future.