Analysis Of Difficult Problems In Application Of Criminal Law In Stakeholder-type Illegal Fund-raising Cases

At present,the cases of illegal fund-raising by stakeholders have the characteristics of large number of people involved,large amount of money,strong professionalism and cross-region.Under the background of the criminal policy of tempering justice with leniency,the key targets of illegal fund-raising by stakeholders are organizational planning and the main executives,as well as the relevant personnel who know that illegal fund-raising is still investing for profit.In the process of rapid economic and social transformation,the criminal regulation of illegal fund-raising by stakeholders should achieve the unity of social and legal effects.It should not only deal with criminalization in time,but also give full play to judicial initiative,so as to achieve the combination of prevention in advance,supervision in the event and punishment after the event.In terms of delinquency and conviction,we should balance the relationship between criminal law strike and financial innovation.In the process of law application,we should clarify the relationship between criminal law and other sectoral laws.As the backing law of other sectoral laws,criminal law should be included in the scope of criminal law adjustment only when other sectoral laws encounter some social relations that cannot be effectively adjusted or have special importance.In identifying the cases of illegal fund-raising involving stakeholders,we should grasp the boundary between criminal and civil,adhere to the criteria of judging the illegality,openness and sociality of the cases of illegal fund-raising involving stakeholders.In dealing with the cases of illegal fund-raising involving stakeholders,we should make a good connection between executions,share relevant departments'information in time,and improve the procedures of case transfer and evidence transfer.Specifically,as far as the application of the charges is concerned,we should distinguish the two major charges of "crime of illegally absorbing public deposits" and "crime of fund-raising fraud".For the purpose of crime,the latter requires illegal possession;for the object,the former violates the order of financial management,while the latter violates private property rights;for the conduct,the latter uses fraudulent means;in addition,the crime of fund-raising fraud will have a"large amount" according to law.”The crime of illegally absorbing public deposits has the condition of disrupting the financial order according to law,and the amount of crime determines whether the financial order is disrupted to a certain extent.There are differences between the two in the calculation of the amount of crime.For the investment of relatives and friends,only when relatives and friends can clearly identify the family members who live together,the amount of crime will not be counted;for the fund-raising behavior of the off-line personnel after the fund-raiser leaves his post,in principle,the amount of crime will not be counted.In the case of conversion of criminal intent,they can be applied separately and simultaneously.Stakeholder-type illegal fund-raising constitutes a unit crime,requiring the subject to possess the qualification of the unit,reflecting the will of the unit,and conforming to the provisions of the criminal law.Natural persons and units can become the subject of the joint crime of illegal fund-raising by stakeholders.The identification of the principal offender should be consistent with the key target of attack.For the joint crime committed by multiple units,the principal offender and the accessory offender should be divided according to the role and status of the unit in the joint crime.From the perspective of penalty,the criteria for determining the victim's property loss and the scope of property recovery involved in the case should be determined,and the time nodes of voluntary surrender and recidivism should be clearly distinguished.