Study On The Identification Of The Purpose Of Illegal Possession In The Crime Of Fraud In Financing

Article 192 of the Criminal Law stipulates that the crime of fraud in financing is expressed under the purpose of illegal possession,the use of fraudulent methods to raise funds,at a relatively large amount.The crime of fund-raising fraud and the crime of illegal absorbing public deposits both include the illegal fund-raising behavior.The behavior contains more or less deceptive elements,and it is difficult to distinguish the two crimes in behavior.Therefore,"the purpose of illegal possession" is the difference between the two crimes,and is also the focus of debate in judicial practice.In judicial practice,although a large number of defendants deny that they had the purpose of illegal possession,few cases were able to be commuted,and lawyers’ defense opinions were rarely adopted.This paper selects 84 cases of second instance in Zhejiang Province and finds that the reasons are varied in the judicial practice.The most common criterion for identification is using the loss result,or the fraud acts,or “knowingly no return ability” to identify.However,in practice,there are questions such as legal appropriation directly evolve probabilistic links to inevitable links,do not distinguish the timing of illegal possession,and production narrowly defined.The influence that this approach may cause is that it easily leads to objective imputation and it is difficult to rule out reasonable doubts.At present,there are two main judicial documents concerning the criteria for determining the “illegal possession purpose” of fraud in fundraising.The first is the "Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Proceedings" promulgated by the Supreme People’s Court in 2010,and the second is the "Minutes of the Symposium on the Trial of Financial Crime Cases in the National Courts" in 2001.The changes in the two legislative documents reflect the tendency of continual expansion and refinement of the “illegal possession purpose” of fraudulent fraud in fundraising.However,some provisions of the provision are inconsistent with the criminal law theory.There are plausible points on issues such as the power and duration of possession,the principle of subjective and objective unification,and theoretical supports.More importantly,because legislators adopt inductive reasoning methods to raise the frequently occurring cases in trial practice to legal fiction,the flaws in this method of determination directly lead to the difficulty of eliminating reasonable doubts.This legislative formulation is also an important reason for the problem of the identification of "illegal possession purpose" in judicial practice.For various issues in judicial practice,the author believes that it is necessary to strictly explain the purpose of “illegal possession” and increase negative inference standards.We should change the model based on results,and pay attention to the objective conditions of behavior;we should distinguish behavioral and purpose recognition;we should also clarify the timing of illegal possession,following the principle of unification and subjectivity;and the scope shouldn’t be limited to traditional manufacturing.Finally,the judicial authorities should establish focus on case analysis and establish negative identification criteria.