Study On The Difficult Problems In Judicial Application Of Crime Of Unauthorized Establishment Of Financial Institutions

With the deepening of the reform of the financial system,the financial industry in China has flourished.However,due to the late start and rapid development of China's financial market,people's financial legal concepts and relevant institutional measures can not be adapted to them,resulting in a certain degree of confusion in the financial market,which will give an opportunity to criminals.If some units and individuals ignore the existing provisions of the state's financial management system and arbitrarily set up commercial banks or other financial institutions to illegally engage in financial activities,some criminals even resort to the principle of invigorating the economy,privately establish financial institutions,run bankruptcies illegally,profiteering from them.This phenomenon seriously infringes the interests of the state and the people and destroys the state's financial management system.At the beginning of the establishment of financial institutions without authorization,since the financial industry was still in its infancy,the unauthorized establishment of financial institutions was usually characterized by typicality and unitaryness.Therefore,it was not that much difficult to determine.However,with the liberalization of the national economic control,the financial market has gradually expanded,and the forms of illegal and criminal activities in the financial activities are diverse and secretive.Therefore,although the crime of unauthorized establishment of financial institutions has gone through 22 years since the first appearance,it is still worth studying and discussing on some issues.In addition to the introduction,this article is divided into the following threechapters:The first chapter: for the identification of other financial institutions,from the macro dimension,we should return to the original intention of the crime,identify the object of the crime from the angle of legislators,and also abide by the modesty of the criminal law and pay attention to the postposition of the criminal law.Therefore,for the identification of the object of crime,we should not only consider the "financial institution" itself contains meaning,but also the combination of the provisions of the criminal law is the framework of all laws and regulations in the investigation;from the micro perspective,there are mainly three kinds of difficult problems in specific cognizance,a branch is a legitimate financial institution without the establishment of whether belongs to other financial institutions,the two is not in the name of financial institutions engaged in financial services institutions belong to financial institutions,in the issue,is the underground as typical examples,the three is whether the object of crime,including the preparatory organization.For the first and third questions,I hold a negative attitude.For the second question,I hold a positive attitude.The second chapter: analyzes the problems in the identification of specific crimes,mainly including two aspects: "no approval from the competent authorities of the state" and "unauthorized establishment".When the application is still under examination and approval,and the actor is going to operate first,or is it authorized to establish,but has not yet received the business license,is it unauthorized? I hold a positive attitude toward the former and a negative attitude toward the latter.In addition,the behavior of "unauthorized establishment" has always been controversial.This chapter starts from the theory,combing with practice,combing the related scholars' different opinions,and defining the "unauthorized establishment" behavior from the perspective of "difference theory".The third chapter: the difficult problems in the application of the penalty mainly include: first,the determination of the completed form of the crime,starting from the clarification of the concept of the perpetrator and the result perpetrator,and arguing that the crime is considered as the rationality of the perpetrator and the crime of the crime,which is not enough necessity to complete the form in judicial practice;the two is "if the circumstances are serious" standard in the study,9 cases collected in only 1cases have been sentenced to "serious",visible because the standard is not clear,lead to the application of the judge in this crime legal punishment is too cautious on upgrading.This chapter starts with the relevant provisions of the similar crime and therelevant opinions issued by the high people's Court of Sichuan Province,and explores the reasonable criteria for the "serious plot".