On The Boundary Of The Crime Of Illegally Absorbing Public Deposits In Peer-to-Peer Lending

The long-term monopolistic financial system and imperfect credit system have objectively restrained the necessary financing channels of the development of private economy,which gave birth to the private lending lack of the purpose of illegal possession.But,such lending has been mostly sentenced to the crime of illegally absorbing public deposits,which is confused with the crime of fund-raising fraud in the judicial application.The interests protection of the lender after the related behavior is sentenced to crime of illegal absorption of public deposits can't form a unified thinking and implementation in practice.Based on this,to clarify the conditions of the crime of illegally absorbing public deposits correctly and make a clear distinction between the crime of fund-raising fraud,is a thorough interpretation of the crime of illegal absorbing public deposits by criminal dogmatics,and can also enhance the unified application of judicial practice which will ensure the stability of law and the predictability of the national action.The validity of the loan contract after criminal issues is also of great significance to the social stability and financial stability.In addition to the introduction and conclusion,this thesis is divided into three chapters.The first chapter introduces the typical criminal cases of private lending in the judicial practice,takes an empirical analysis of the verdicts of the "offline" SUN DA WU's case and the "online" P2P lending cases,summarizes the judicial situation,and focuses on judicial dilemma.The second chapter attempts to adapt theoretical analysis as the main line.First of all,to clarify statutory crime and administrative crime,in order to ascertain the legal nature of the crime of illegally absorbing public deposits.Then,to lead into the reflection of the mechanism of the crime based on the legal nature above:we should grasp the "secondary illegality" characteristics,and practice the principle of the criminal restrain.Finally,the weak basis of taking the behavior of illegal absorption of public deposits into criminality,which is a simple regulative crime,determines its limited legal interpretation and judicial application.In subjective aspect,serve that whether owns the purpose of illegal possession as the criterion,so as to make a distinction between the crime of illegally absorbing public deposits and the crime of fund-raising fraud.In objective aspect,combined with the content of its legal interest,we must take the concept of absorbing deposits as deposit and loan business of commercial banks,so as to draw the basis of administrative punishment:whether to manage the currency deposit and loan business,which is a necessary,but not sufficient,condition of the crime of illegally absorbing public deposits.The key of the judgment,should be that whether there is specific risk of "disrupting financial order ".To transfer the criterion of"disruption" from "absorption amount or number of people" to the judgment of specific risk in specific cases.This explanation of criminal type which transfers actual damage crime to concrete dangerous crime,is one of the important innovations of this thesis.The third chapter continues the criminal conviction of the second chapter,focusing on the understanding and interpretation of "mandatory rules" and the boundaries of public and private law from nomological perspective,and draw a conclusion that the criminal related loan contract is not necessarily invalid,which proved the judicial interpretation of the relevant content.