On The Judicial Application Of The Crime Of Illegally Absorbing Public Deposits

With the rapid development of our country's economy,the disposable income of families is increasing day by day,and a large number of social idle funds are pouring into the financial market.This greatly relieves the financing pressure of private enterprises,but also induces a large number of illegal and criminal activities of illegal fund-raising types.Among them,the crime of illegal absorption of public deposits as the basic charges of this type of crime,its application rate is the highest,but due to the vague threshold of the crime into the general application of the phenomenon is becoming more and more serious,deeply criticized by all sectors of the community.In addition,the development of small and medium-sized private enterprises in China is plagued by the shortage of funds.Most private enterprises have to turn their financing channels to the private financial market because of the long audit cycle,cumbersome procedures and small loan amount of financial institutions such as commercial banks.However,their private financing activities are very likely to touch the red line of the crime of illegally absorbing deposits of the public.It is declared that the Criminal Law is excessively involved in the private financing market,resulting in financing difficulties for private enterprises and difficulties in ensuring the personal safety of entrepreneurs.In response to the above issues,the criminal law community has heatedly debated.Its mainstream view is to use criminal law hermeneutics to restrict the interpretation of the constituent elements of the crime of illegally absorbing public deposits in order to suppress its generalized application and create new conditions for private enterprises.Good financing environment.However,scholars who support this view are mostly based on different understandings of the object of the crime.The proposed restriction path is not operable,and its application effect is not ideal.The evolution of the judicial application of the crime of illegally absorbing deposits of the public has the characteristics of application in three periods:preliminary exploration,expanded application and rational return.The threshold for incrimination of the crime of illegally absorbing deposits of the public is the violation of the national financial management regulations,which conforms to four behaviorcharacteristics and reaches the minimum standard of prosecution.In particular,as to the illegality of national financial administrative regulations,such crime,as a typical administrative offender,should have the dual characteristics of illegality;in terms of four behavior characteristics,the determination of illegality should cover both the form and substance,while the determination of openness should uphold the unity of subjectivity and objectivity,and the determination of inducement should not be limited to the repayment of principal and interest.In the determination of social nature,the non-specificity and plurality of fund-raisers shall be considered;in terms of reaching the minimum prosecution standard,attention shall be paid to the restrictions of relevant provisions and calculation of raised amount.On the basis of the existing standards for determining the crime of illegally absorbing deposits of the public,we should introduce the concept of "penetrating supervision",that is,the conviction of the crime is no longer limited to the intermediate link of absorbing deposits,but restricted from the source and ultimate flow of funds,so as to clarify the boundary between the crime of illegally absorbing deposits of the public and private lending and Internet finance and achieve the effect of restraining the application of the crime.