On The Reconstruction Of Drawing-back Investment Crime Under The Background Of Subscription Capital System

On December 28, 2013, the amended Company Law is reviewed and passed by the standing committee of the National People’s Congress, and the new Company Law has been officially implemented on March 1, 2014. The amended Company Law has a breakthrough and innovation on the original corporate capital system. With the introduction of the new Company Law, much administrative law on the basis of Company Law is changed accordingly. Each revision of the corporate capital system all brings(or should bring) corresponding changes of criminal law. However, the criminal law doesn’t have much change accordingly. From this perspective, criminal law has a serious lag on the legislation of this part.The new Company Law has abolished the minimum registered capital system. The paid-in capital system has been changed into subscription capital system. This provision will have an important impact on criminal law system including of this crime. One of the biggest impacts is that this crime should be saved or abolished. There is a big controversy on this problem since the revision of Company Law in 2005, however, this revision makes more intense controversy instead of controversy disappearing. This paper consists of the following three main chapters:The necessity of reserving drawing-back investment crime under the background of subscription capital system has been discussed in the first chapter. Major adjustment of new Company Law and the resulting dispute about reserving or abolishing of drawing-back investment crime are briefly introduced, which is used for the necessity research of reserving drawing-back investment crime. For the reason of reserving drawing-back investment crime, the article does this research from four parts. First, the relationship between subscription capital system and drawing-back investment crime is clarified in this paper. We think that the behavior of drawing-back investment under subscription capital system will still occur. Second, the article demonstrates it from the perspective of history. Through reviewing the role of this crime since it was set up, to prove that the establishment of this crime is very necessary. Third, the behavior of drawing-back investment crime still exists in great quantities, and the credit system in our country is still not perfect. In addition, subscribed credit registration system will weaken the enterprise capital, so reserving this crime conforms to our country current situation. Finally, the article believes that to set up this crime is in accordance with the modesty principle of crime law. This crime is neither expensive punishment nor abuse punishment. So it is still needed to reserve this crime under the background of subscription capital system, only in this way can maintain the market economic order and to protect the interests of the creditors.The constitutive elements of drawing-back investment crime under the background of subscription capital system are discussed in the second chapter. The change of the self-localization of new Company Law has an important influence on the determination of criminal object of this crime. The criminal objects of this crime under the background of subscription capital system shall be the company’s property ownership. The crime subject should not include the originator, and the company business execution and actual controller should be included in crime subject. In addition, the objective aspect of this crime under the subscription capital system is also changing.Amending advice of drawing-back investment crime under the background of subscription capital system is proposed in the third chapter. First, the article thinks that this crime charge is not accurate enough, the article suggests that this crime charge should be modified to drawing-back company property crime, Second there are many problems with the constitutive elements of this crime, such as the crime subject is not accurate, the crime object is not clear. So the crime subject of this crime is changed into a company, business execution and the actual controller. The criminal objects of this crime are changed into the company’s property ownership. Third, the law of drawing-back investment crime sets unreasonable. Fine punishment should be adjusted to balance with the new Company Law’s. At the same time, in order to adapt to the characteristics of economic crimes, qualification punishment should be added on the basis of drawing lessons from foreign as well as the relevant provisions of criminal law in China. Finally, the facts of this crime are not clear and lack of scientificity. The facts of this crime should be stated as follows: "the shareholder of the company, the business execution and the actual controller distribute or transfer the company property which is compatible with the company registered capital illegally, which causes the loss of company registered capital, the amount is huge, serious consequences or other serious circumstances behavior".