The Judicial Determination On Crime Of Illegally Absorbing The Public Deposits

In recent years,tremendous changes have taken place in China' s social and economic conditions,the market has been more and more active,the demand for funds has been greater and greater,especially the huge demand in small and medium-sized private enterprises.Simultaneously,it has implemented the proactive fiscal policy and the prudent monetary policy under the State's macro-control,which resulted that relative market entities had been quite difficult to receive financing from financial institutions with such narrow financing channels,the fund holders have been seeking for ways of investment to maintain and increase the value of their funds.Under this circumstance,There is a huge markets for both funds demanders and suppliers,private lending has been rapidly developed under this environment,various financing methods have been springing up with more and more issues on illegally absorbing the public deposits.In the face of these cases,it is significant to accurately apply this crime.To accurately apply this crime shall suitably protect the rechtsgut,promote the small and medium-sized private enterprises to maintain development vitality and push the innovation and development of financial systems,protect the national interests and these enterprises' interests;On the contrary,to inaccurately apply this crime shall restrain the private fund flows and result in the lack of economic development power,impede the innovation of national financial system and make the nation and enterprises suffer obstructions.Hence,this thesis has analyzed in the light of the theory concerning Chinese criminal law,integrated some fuzzy issues in the judicial practice,tried to study on the theoretical problems and practical issues related to this crime,and expected to clarify some relative disputes in the judicial practice.The full text has 28,000 words,its main content paper is made up of four parts.Part I: “Analyze the components of the crime of illegally absorbing the public deposits”.Beginning with the social relationship infringed by this crime,it compares and analyzes the theoretical disputes of criminal object of this crime,proposes that the criminal object of this crime is the order in the management of national deposits.Referring to the objective elements of crime,it defines the intention of following four key words: “illegally”,“absorbing”,“public” and “deposits”.Referring to the criminal subject,it gives opinions that it is possible to become the criminal subject even with deposits operation qualification.Referring to the subjective elements of crime,the author emphatically discusses that the components of the crime may not target at credit.Part II:“Distinguish the crime of illegally absorbing the public deposits and relative civil conduct”.For the distinguishing problem,the author proposes that it shall apply the method of “five sees” to distinguish,which includes to see the behavior object,see the behavior pattern,see the behavior consequence,see the interest rate and see the use of funds.Referring to distinguishing this crime and entrusted investment behavior,the author points out that it shall be determined by following three aspects: whether the parties have agreed the minimum-guarantee clause in the entrusted investment agreement;whether the funds have been used as the consignor wished;whether it is for non-specific object.Referring to distinguishing the crime of illegally absorbing the public deposits and P2 P,it analyzes three tricks of illegally raising funds by P2 P lending in actual judicial practice.Part III:“Distinguish the crime of illegally absorbing the public deposits and similar crimes”.In consideration of the difficulties of distinguishing the crime of illegally absorbing the public deposits and the crime of fraud in financing,it proceeds from following two core problems: “for the purposes of illegal possession” and “the situation of criminal's intentional transformation”,integrates cases and analyzes according to the principle of making subjective and objective be consistent.Referring to distinguishing the crime of illegally absorbing the public deposits and the crime of organizing or leading the illegal pyramid schemes,it shall make overall analysis on the four criminal components to distinguish aforesaid two crimes.However,referring to distinguishing this crime and issuing stocks and corporate bonds without authorization,it shall emphasize to investigate the nature of investors' written document,and to distinguish the crime by determining whether the stocks or bonds are marketable securities,and to accordingly fight the crime of absorbing publicdeposits by issuing securities.Part IV: “Other difficult problems for judicial determination on the crime of illegally absorbing the public deposits”.It begins with the joint crime,primarily elaborates the accomplice with different criminal intents and the understanding and applicability of relative regulatory documents.For determining the amount involving in the crime,this thesis describes whether the amount in the advance behavior,re-lending behavior and under the circumstances of compounding may be regarded as criminal amount in actual judicial practice.