Recognition Of The Crime Of Illegally Absorbing Public Deposits

The rapid development of the economy and financial,especially the development of internet finance,has provided convenient conditions for fund raising.At the same time,due to the increasing financing needs of small and medium-sized enterprises and entrepreneurs,it is difficult for them to obtain sufficient loans or even loans from banking financial institutions.The public oriented fundraising is in full swing and intensified.The crime of illegally absorbing public deposits is the most basic crime of illegal fund-raising crimes.Because the regulations are not perfect and the certification standards are not clear,it is often used as a criminal offence in judicial practice and becomes a pocket crime that is often abused.In addition,there is a serious result-oriented tendency in judicial practice,that is,once the public funds are raised and the results of irreparable cases occur,as long as the number of people raised,the amount,or the losses caused by the action meet the statutory standards,the action was found to be the crime.This method of identification seriously violates the principle of legality of crimes.Therefore,it has been criticized and questioned by the theoretical circle,practice field,and the society.It is urgent to clarify the thinking and path of the identification of this crime.This article attempts to discuss the identification of this crime in the following sections.The first part takes the case of illegally absorbing public deposits by Zhongfu Securities Co.,Ltd.as the entry point,and then introduces how the judicial practice judges the illegality of criminal acts of this crime and defines the connotation of behavior.In order to solve the problem of illegal absorption identification,the author first summarizes the criteria for determining the illegality of the act of absorbing funds,and secondly proposes three different views on the connotation of absorption.One of the views,"money,capital operation theory" is to understand the "absorption" after co-ordinating the entire crime,from the perspective of the legislative purpose and legislative value of this crime and from the perspective of the scope of application of this crime and the scope of regulation.Finally,we limit the scope of application of this crime by the use of absorbed funds,and make reasonable choices of the connotation of absorption to avoid this crime being abused.The second part take two cases as the entry point,one case is a certain company in Shanghai,Wu Mou was accused of illegally absorbing public deposits,the other case is Zhang Mou and Zhang Moumou illegally absorb public deposits.The two cases led to the questions of how the judicial practice defines the criminal object of this crime,the scope of the public,and the nature of deposits.The author first determines the public scope from two opposite aspects,that is,from the positive path and the negative path.Secondly,it puts forward different theoretical views on the nature of deposits,and evaluates different viewpoints.Finally,this paper expands its points.This paper argues that the nature of deposits is considered to be funds for currency and capital operations.The third part take one case,the former president of Shanghai Pudong Development Bank(Zhengzhou Branch)illegally absorbing public deposits,as an entry point.Then it leads to the definition of the criminal subject in practice and how to identify illegally absorbing public deposits in the name of the unit.The author first introduces the theoretical disputes and practical differences in the identification of the subject of the crime.The paper discusses whether the banking financial institutions with the absorbing qualifications can constitute the criminal subject of this crime.This article holds a positive view.Secondly,this paper discusses a quite controversial subject in practice,that is,whether "acquisition of public deposits in the name of the unit" is a natural person crime or a unit crime.The fourth part takes the case of Wan Mou and others accused of illegally absorbing public deposits as an entry point,and raises the question of how to determine the amount of the crime.The author first puts forward four viewpoints on the determination of the amount of crime,and evaluates each viewpoint.This paper argues that the crime amount of this crime should not be determined just by one method,instead,it should be analyzed and determined according to the specific circumstances.Secondly,this paper discussed specific and different circumstances before the crime exposed,such as,the principle is partly returned,the interest is partly paid,continued loaning,compound interest,the suspects and their relatives invest on their own.