The Research On The Criminal Regulation Of P2P Network Loan

P2P loan is one of the newly arising way of direct financing,which offers an intermediary platform for lenders and borrowers to establish direct loan relationship between each other.Our Chinese P2 P loan industry started in 2006 and developed rapidly since 2011.During the period,the establishment of platform has not set up any access threshold.Meanwhile,platform built up fund pools and charged exorbitant interest rates,which has seriously violated the essence of P2 P.In that case,China's relevant supervision departments have introduced regulatory policies in succession and marked out the“Red Line” to P2 P industry.Since then,our domestic P2 P industry has come to the adjustment period for “survival of the fittest”.Since 2015,the number of criminal cases concerning the P2 P loan has increased sharply.With huge amount of money and people involved,it has brought serious unstable factors to whole society.Based on that situation,the author collects domestic P2 P criminal cases judgments in recent years,carries out the detailed statistics in terms of court session time,defendant identity,number of people involved,amount of money involved,circumstances of crime,regional scope,accusation,term of imprisonment and other aspects,and then makes a summary upon the current situation and cause of the P2 P loan related criminal offence in the juridical practice.In recent years,our China's P2 P network loan related criminal offence number has shown anupward trend.And cases show the characteristics that the number of crimes in different places is proportional to the local economic development level.At the same time,the investing people and amount involved as well as the loss can be extremely huge.In the juridical practice,the phenomena exist that penalty of crime of illegal absorbing public deposits is obviously less than the crime of fund raising fraud,case is hardly judged as the unit crime,and defendant group mainly consist of the actual controllers and senior administrators.The criminal offence involving P2 P network loans mainly include crime of illegal absorbing public deposits,crime of fund raising fraud and crime of unauthorized financial institution establishment.About the crime amount of P2 P platform,there also exist some divergences.Most defendants propose to take the actual losses or illegal income as the reference for crime amount,but in the juridical practice,the crime amount refers to the total amount of the crime case.The funds of compound interest should be considered into the crime amount;The funds of special relative person depends on the intimacy of relationship between the person and perpetrator and then can be confirmed whether it belongs to the crime amount;Test funds or invented funds should not be considered into the crime amount;The funds without define sources usually are not considered into crime amount.The crime judgment of P2 P network platform has been the public pay concern.Among the boundaries between crime,non-crime and specific crimes,we need to focus on the uncertainty of the fund sources,whether there is any commitment to break even and pay interest,and whether it exists the “illegal possession purpose”from the subjective aspect,etc.The operators of P2 P platform usually shall set up units to commit crimes,but there are very few cases being considered as unit crimes in the juridical practice.Author thinks that according to the definition of unit crime,limited partnerships do not belong to the scope of units.If internal personnel of unit commit crimes together without any domination by unit will and get illegal income not owned by the unit,the case should be considered as joint crime instead of unit crime.In the case of jointcrime,if the perpetrator has the illegal possession purpose subjectively,this should be considered as the crime of fund raising fraud.If the perpetrator does not have the illegal possession purpose but absorbs the public deposits,the case should be considered as the crime of illegal absorbing public deposits.Concerning the P2 P network loan related principal criminal and accessory accomplice judgment,the actual operators and senior administrators should be considered as the principal criminals.But the entrusted “nominal” legal representative should not be considered as the principal criminal.And if the salesmen,financial staffs and technical staffs do not have explicit criminal intentions subjectively,they shall not be considered as the accomplices.About the criminal liability of the third party institutions issuing the certificate documents,it mainly depends on whether the personnel of third party institutions know the fund raising purpose of the illegal P2 P platform.If yes,the institutions should be considered as the accomplices of illegal fund raising crime.Then,it is about the identification of cessation state of the P2 P network loan platform crime.For the crime of illegal absorbing public deposits,first we should ensure it must exist the attempted state,the detailed embodiment of which should be that the perpetrator has accomplished the primary work and relevant network platform has already obtained the objective conditions for illegal absorption of public deposits.In the meantime,perpetrator promises to give high interest returns but does not continue due to reasons other than his or her will.For the attempt to raise funds for fraud,it refers to the result that when the perpetrator commits a crime,he or she fails to make the property loss in a large amount due to reasons other than will.Additionally,in the operation process of P2 P platform,it can also involve many other different crimes as well.Thus,the study upon the quantities of crime form can be quite important.The author thinks that,if the fund raising defraud is conducted in the way of signing the false contract,the perpetrator should be punished for the crime of fraud in financing.In the way of pyramid sales,the perpetrator should also be punished for the crime of fraud in financing.If the perpetrator refuses to return the financing fund,he or she produces the “illegal possession purpose” after committingthe crime of illegal absorbing the public deposits.In that case,the perpetrator should not be considered as the crime of fraud in financing.For the case of establishing financial institutions to absorb deposits,if the perpetrator first has the crime intention of illegal absorbing the public deposits and then implements the behavior of establishing the unauthorized financial institution,this should be considered as the crime of illegal absorbing the public deposits.But if the perpetrator first establishes the financial institution and then produces the crime intention of illegal absorbing the public deposits,he or she should be punished for several crimes.Although the criminal laws' regulation for the P2 P platform is necessary,it is not appropriate to deny the rationality and positive function of this industry.To treat this financial innovation,the attitude of criminal law regulation should be modestly restrained instead of preventing and blocking the development of P2 P network loan industry.We should get more inspirations from the criminal provisions and take measures for the criminal law risk prevention for the P2 P platform.From perspective of establishing the complete supervision system,we should take a full range of regulatory measures,such as establishing the industrial supervision institutions,setting up the access thresholds,building up the real time monitoring mechanism,withdrawal mechanism and information records and trusteeship system.In the meantime,the P2 P network loan criminal law also needs improvement.It is advised to restrict the crime of illegal absorbing the public deposits,set up the independent accusation for illegal operation of P2 P loan platforms and complete supplementary penalty system.