Application Of The Crime Of Illegally Absorbing Public Deposits

Since the implementation of the company law revision and registered capital registration reform system,China has gradually opened the access conditions to market entities.A large number of small and medium-sized private enterprises have emerged at the historic moment.However,as small and micro enterprises enhance market vitality,private enterprises face bottlenecks in financing difficulty and financing expensive for the high auditing standards of bank monopoly and bank loans.At the same time,with the improvement of residents' living standards,the public has accumulated a large amount of funds to investment and financial management.The two demands are complementary to each other,and private financing is popular for a while.With the help of the Internet,the rise of online lending platforms has accelerated the development of private financing.However,the crime of illegally absorbing public deposits has a vague definition of itself,and the elements of illegality,sociality and publicity are unclear in connotation and extension,which makes the behavior pattern of private financing highly consistent with the crime of illegally absorbing public deposits.What's more,the improper understanding of the crime of illegally absorbing public deposits in judicial practice has further aggravated the confusion between them.The crime of illegally absorbing public deposits has become a high-frequency crime involving private financing.Taking this judicial application of legal financing activities into the criminal circle clearly belongs to serious judicial expansion.It is a well-known fact that the crime of illegally absorbing public deposits has expanded application.Scholars often demonstrate the existence of judicial expansion through deductive reasoning.However,the most intuitive and accurate way to prove the judicial expanded application is through empirical research.Through demonstrating the judges' improper expansion of the constituent elements of the crime of illegally absorbing public deposits and strict restriction on the elements of crimes,we can identify the existence of judicial expanded application.This phenomenon is reflected in the improper expansion of illegality,publicity and sociality.The strict restriction on the crime elements of illegally absorbing public deposits is reflected in the strict restriction on the crime of production and operating activities,which are caused by unclear legal interest identification,and the strict limitation of relatives and friends due to the improper expansion of social relations.On the one hand,the existence of judicial expanded application of the crime of illegally absorbing public deposits is related to China's repressive supervision of private fund-raising.On the other hand,it is also related to the vague definition of the crime of illegally absorbing public deposits and the difficulty in distinguishing the concept of illegal fund-raising.China's financial system is changing from a monopoly-based national financial system to a market-based one,which is to meet market demand.The government encourages and supports the healthy development of private financing.The repressive regulatory situation is no longer applicable to today's financial policy,and expanded application deviates from the current legal and policy orientation.In addition,the ambiguous concept of the constituent elements of the crime of illegal absorbing public deposits will lead to confusion between the crime of legal fund-raising,illegal fund-raising and illegal absorbing public deposits,which not only breaks through the requirements of the principle of modesty in criminal law,but also destroys the ladder nature of the punishment system.Therefore,restriction and application of the crime of illegally absorbing public deposits is imperative.Decriminalization,criminal law interpretation and Amend the criminal law can solve the problem of expanded application of the crime of illegally absorbing public deposits.Among them,the interpretation method of criminal law is the most suitable.Analyzing the absorbing of public deposits is the exclusive business of banks,and it is confirmed that the legal interest of this crime is the exclusive right of banking financial institutions to absorb official deposits,and the change of financial policy orientation will not affect the protection of the legal interest.By referring to the financial management laws and regulations,illegality is defined as taking public deposits to engage in currency business without approval or in violation of interest rate regulations.The identification of publicity should be based on the principle of consistency between subject and object,and comprehensively judged by combining the factors such as whether the fund-raiser knows about it,what the attitude is,the scope of publicity,etc.Sociality is divided into two aspects: universality and non-specificity.In addition to the characteristics of publicity,it is necessary to judge from the social radiation of fund-raising behavior.