Research On Some Judicial Cognizance Issues Of Crime Of Illegally Absorbing The Public Deposit

As a kind of economic crime, the crime of illegally absorbing the public deposits has gone through a legislation process from being into nonbeing. As the development of society and market economy, the crime of illegally absorbing the public deposits which acted as pocket crime, always caused the criticism of the theory and the practice. On one hand, illegally sucking in public deposits not sanctioned by the State, absorbs the funds of non-specific object, and disrupts the financial order of State, which has the wide scope and deep influence. On the other hand, small and medium-sized enterprise cannot develop without large amount of funds, but they cannot obtain money form State financial institutions, which makes them take out loans from private lending. That makes the private lending chaotic. A lot of group incidents caused by illegally sucking in public deposits happened, the public pay their attention to the crime of illegally sucking in public deposits. In the article, according to relevant professional knowledge, we put the theoretical problems and controversies of practice into discussion, which was based on the fundamental realities of our country at the stage. This article contains four parts.First part: overview of crime of illegally absorbing the public deposits. This section reviews the development of the crime of illegally absorbing the public deposits, and summarizes the judicial interpretation, relevant regulations and laws since 1979. The constantly improving definition of the crime show great significance in juridical practice, which protects the order of country finance and stabilize the society.Second part: the confirmation of the crime of illegally absorbing the public deposits. First, we analyzes the problem from the perspective of objection to financial institution, which owns deposit-taking franchise right. We put up this point, which was based on analysis of legal basis and the situation of law theory system, laws and regulations of our country. Second, we discuss whether the deposits were used to capital operation as the judgement standard of crime. Through the analysis of current laws and regulations, consequential offense was thought as the principal crime. Third, in the objective aspect of crime, we discuss the connotation of “deposits” and “conversion”. Fourth, in the aspect of criminal object, we assess the different opinions on criminal object of principal crime, in order to summarize the criminal object the principal crime invades.Third part: judicature recognized of the crime of illegally absorbing the public deposits. First, from the current state of private lending, we try to find out the crux of crime dispute. Combining of theory and practice together to analyze this action, we set the division standard of crime and non-crime, including lending object, high interests, risk assessment and consequence. Through the discussion of illegally absorbing the public deposits not as a crime, we think it is not proper to handle the illegally absorbing the public deposits not as a crime in our country. Second, through the analysis of the relevant concept of victims and their power and obligation, we think depositors cannot own the locus standi. Third, we analyzed the action of interest paid and the action of continuing depositing interests again before crime. Based on the judicial interpretation and current theory, we judged whether the interest should be counted into crime amount.Forth part: the legislation deficiency of the crime of illegally absorbing the public deposits and ways to complete the legislation. Combining the situation of crime of illegally sucking in public deposits in our country and the understanding of foreign relative law, some advice was promoted: first, to make the punishment system perfect. The ladder punishment mode which gives priority to administrative punishment and lags criminal punishment behind should be adopted. Second, a new accusation should be set up to define the application scope of this crime. Third, to set up a special regulator in People’s Bank of China. Some elements should be brought into monitoring indexes, such as use of funds, interest rate standard, borrowing form, credit status and credit standing.