A Study On The Limitation Of Judicial Application Of The Crime Of Iegally Absorbing Deposits From The Public

In judicial practice,there has always been a controversy over the judicial application of illegal absorbing public deposits.In order to eradicate illegal fund-raising,the judicial interpretation of the core conviction elements,such as “public”,“deposit” and so on,is expanded,making the constitutive elements of this crime confusing with those of folk borrowing,especially commercial folk lending behavior..In judicial practice,ignoring the details such as the difference of the subject type of the crime and the imbalance of sentencing makes the application of criminal regulation on the behavior of "illegally absorbing public deposits or absorbing public deposits in disguised form" very controversial.The author hopes to carry on the empirical analysis of this crime judicial application present situation,with the 2017 national 300 judgments as the sample.Through the statistical analysis of the application of the behavior object,the amount of the absorbing funds,the use of the funds and the ways of the absorption behavior in the sample,We can see that the judicial applicability of the crime of illegal absorption of public deposits shows a trend of expansion.In the aspect of the behavior subject of this crime,the diversification of the subject caused by the behavior mode of small and medium-sized enterprises,including a natural person's establishing a unit for the absorption of funds and the crimes committed by units and the direct person liable,has not been paid attention to.In terms of the behavior object of this crime is that the standard of judicial cognizance of absorbing funds below 30 people is not uniform,and the extension and connotation of "public" are expanded constantly in actual operation.In the aspect of the amount of funds absorbed in this crime,the trend of "only amount theory" is reflected in practice,and there is also the problem of unequal sentencing.As for the use of funds and behavior of this crime,the practice failed to reflect the pleadable reason that absorption of funds is mainly used in the production and operation,resulting in the criminal regulation of most cases on folk loans which are made because of difficulties in production and operation and later failed to return.The author thinks that the reasons for the expansion of the crime can be divided into two aspects: In the aspect of legislation,the dissimilation of legislative purpose leads to the failure of legislation to meet the needs of judicial application;In the aspect of judicial interpretation,the expansion of the elements of the crime,such as "public","illegal","deposit" and so on,embodies the extension of the application of the crime.The expansion of judicial application not only damages the judicial credibility and authority,but also negates the legitimacy of private finance and weakens the risk consciousness of the investors,which is not conducive to the stable development of national finance.In order to solve the problem of the judicial expansion and application of this crime,there are two viewpoints in the academic circles: "the theory of eliminating crime" and "the theory of restriction".The author thinks that from the view of feasibility and the current regulatory situation of illegal financing,we should limit the extension of judicial application of this crime.The author thinks that in order to construct the limited path of judicial application of this crime,the purpose explanation should be used to guide the judicial application.Reinterpret the essence of the crime as "information asymmetry" in the specific confirmation,and analyze the characteristics of the crime through the qualification of the identity of the investor and the limitation of the use of funds in the judicial practice.Through the construction of a restricted path,clearly improve the threshold of the crime,distinguishing the boundaries between this crime and folk lending.