Research On The Criminal Law Regulation Of P2P(Peer To Peer Lending) Fund-raising Fraud Crime

ALL works of life in society are deeply integrated with the Internet because of the continuous innovation and development of Internet technology in recent years.Among of them,the deep integration of finance and the Internet has made great changes in people's life,especially in the way of consumption.Internet finance came into being.As an innovative mode of Internet finance,P2P(peer to peer lending)has led to the reform of people's traditional financial management and investment habits.And also,it gives impetus to the reform of our financial system.However,the relevant legislation is lagging behind in contrast with the rapid development of Internet finance.Many regulatory efforts have been put into practice in recent months.The regulatory framework of P2 P exists.However,the regulatory system of P2 P is not perfect because of the complicated and lengthy legislative process.Most rules of this industry are issued in the form of “notification” or “opinion” now.It causes the legal effect is relatively low.As the regulatory system is not perfect,the direct impact is the rapid development of P2 P with a large number of legal risks and even criminal risks.In this case,we should focus on the fact that we may improve the criminal law regulation of P2 P together with avoiding excessive emphasis on legal regulation.This article focuses on the P2 P fund-raising fraud crime in the view of the current P2 P platform frequent occurrence of “thunderbolt” phenomenon(Financial terms,a newmeaning on the internet.Generally refers to the P2 P platform failed to repay the principal interest of the investor,legal person running away,platform loss,collapse,etc.).This paper analyzes the relevant civil and criminal legal risks by introducing the general situation of P2 P.It also focuses on the crime of P2 P fund-raising fraud with emphasis.I put forward the suggestions on P2 P fund-raising fraud from the two angles: correctly distinguishing the definition of criminal and civil cross-border areas and suggesting the criminal policy of tempering leniency and severity at the last part.This article is mainly divided into four parts:The first part is the basic theory of P2 P,introduces the concept,mode and function of P2 P.It originated in England.Our country's P2 P platform has become the largest in both number and quantity in the world.We can assume that this industry has a very great potential for development in our country.Nowadays,the State encourages“public entrepreneurship and innovation”.There are many “localization” changes and innovations in the platform mode of P2 P.The most successful innovation mode is“platform plus guarantee mode”.This model not only maintains the fundamental nature of platform information intermediary,but also actively responds to the expectations of us for “credit guarantee”.All these promote the rapid development of P2 P network lending industry.In addition,the rapid development of the industry not only benefits from the innovation or “localization” of the platform itself,but also has deep social,policy and even legal reasons.Small enterprises have been one of the important supporting forces in our economic and social development for a long time.Financing difficulties directly become the main development problem for them because of their own problems such as financial system,capital,technology and other aspects.P2 P makes up for the shortcomings of traditional finance.It not only becomes an effective way to solve the “financing difficulties” of small enterprises,but also provides a new channel for public finance.The second part makes a brief analysis of the civil and criminal legal risks involved in P2 P.As far as civil legal risk is concerned,the article briefly introduces the industry risk of P2 P in our country.This part mainly from the perspective of the platform itself and civil risks,from the main aspects,the main risks are default risk(“legal person running away”),credit risk(information disclosure asymmetry),capital management risk,market interest rate risk and so on.Behavioral risk is mainly related to the risk model of self-guarantee platform and debt-transfer platform.Environmental risks mainly involve legal supervision and policy adjustment.The legal supervision is relatively lagging behind at present.Once the supervision is strengthened,the P2 P industry shall face intense screening.As far as criminal legal risks are concerned,this paper reveals the potential criminal legal risks in the P2 P industry against the objective background of P2 P “thunderbolt” recently reported by Shanghai police,and in combination with China's criminal law.P2 P is most likely to violate the illegal fund-raising behavior.Illegal fund-raising is not a specific accusation as an act.Generally,the act involves the crime of illegally absorbing public deposits in Article176 of the Criminal Law,the crime of fund-raising fraud in Article 192 of the Criminal Law and the crime of contract fraud in Article 224 of the Criminal Law.This part mainly analyzes the crime of P2 P fund-raising fraud.It also introduces some other criminal charges that may be touched upon at the same time.The third part focuses on the criminal legislation perspective of P2 P fund-raising fraud.The crime of fund-raising fraud is also one of the most important suspected charges of illegal fund-raising.The key point to determine is whether it has the purpose of illegal possession and the existence of the method of using fraud.The crime of fund-raising fraud is aimed at illegal possession for the purpose of crime.For the object of crime,the crime not only violates the order of financial management,but also infringes property ownership because of the purpose of illegal possession.For the objective aspect of crime,the crime is to raise funds by means of fictitious facts or concealing the truth.It also points out that “Ponzi scheme” is the most typical form of fund-raising fraud involving P2 P at the same time,which has great social harm.In addition,there have been 11 cases in judicial practice in which fraudulent means have been identified in criminal cases of illegal fund-raising.However,we can't simply apply the rules in the view of P2 P.We should think from these angles such as the high rate of return as an attraction to investment,false propaganda or false advertising to make the victim fall into the wrong understanding and conceal funds.The fourth part focuses on the judicial application of P2 P fund-raising fraud.This paper tries to clarify my response to criminal law from the perspective of P2 P.In this chapter,I propose to further improve the judicial regulation of P2 P from two dimensions: correctly distinguishing the nature of criminal cases and correctly applying the policy of tempering leniency with severity.P2 P is an important platform and guarantee to solve the current small enterprises and personal financial intermediation.If the criminal regulations are too strict,it is very likely to frustrate the possibility and enthusiasm of the development of P2 P.At the same time,it is suggested that the State should have a certain degree of “Tolerance of faults” for financial innovation in the process of the development of Internet financial innovation.Therefore,in the cross-cutting field of civil and criminal law,we should correctly distinguish the nature of platform intermediary and avoid the widespread use of the crime of illegally absorbing public deposits.On the basis of identifying the illegal absorption of public deposits,the “purpose of illegal possession” should be constrained and explained.We may especially consider the objective factors such as life practice,and resolutely avoiding the “Indirect inference” demonstration model.In addition,I suggest that the punishment should be aggravated sentencing for the crime of fund-raising fraud.