Research On The Identification Of Crime Of Illegally Absorbing Public Deposits

With the continuous development of China's socialist market economy,the scale of China's financial market is also gradually expanding,and has become an important factor to promote the development of China's socialist market economy.As one of the important components of the financial market,private finance has a close relationship with the financial order.At present,in the process of business development of small and medium-sized enterprises,in order to improve their market competitiveness,a large amount of capital support is inevitable.However,due to the practical problems of financing difficulties and poor financing environment,a large number of private idle funds in the society It just met the development needs of SMEs and became their main financing channel.Private finance has the characteristics of low threshold and fast lending.However,compared with financial institutions with deposit and loan qualifications,private finance has high funding risks and poor capital security,which has greatly affected the stability of China's financial order.At present,the crime of disrupting financial management order represented by the crime of illegally absorbing public deposits and the crime of fund-raising fraud is increasing in number.With the emergence of cases such as the "Wu Ying Case" and the "Sun Dawu" Case,the merits of such cases have become even greater.It is becoming more complicated and the methods are more specialized.The identification of such crimes has brought great obstacles.For example,there are many differences in the definition of the crime of illegally absorbing public deposits,the crime of fund-raising fraud,and the legal folk lending.The focus of their controversy is mostly on the expression of “disguised assimilation of public deposits”,the understanding of “deposits”,whether the use of the absorbed funds affects the determination of crimes,whether the acts of absorbing deposits constitute other crimes,and whether the crime of illegally absorbing public deposits Issues such as the harmful consequences of disrupting the financial order must unfold.Based on the consideration of the above issues,in addition to the introduction,this article has conducted a detailed demonstration of the determination of the crime of illegally absorbing public deposits through four parts:The first part is an overview of the crime of illegally absorbing public deposits.First of all,starting from the theory of the four elements of the crime,the requirements of the crime in terms of subject,object,subjective and objective aspects are elaborated.Constituting this crime requires the harmful consequences of disrupting the country's financial management order.Secondly,it expounds the behavior characteristics of the crime of illegally absorbing public deposits,and points out that the crime of this crime should have "four natures",that is,illegality,openness,temptation and sociality.The second part is about the problems found in the crime of illegally absorbing public deposits.First,the question of the vagueness of the standard of judicial interpretation is pointed out,and it is pointed out that the current standard of judicial interpretation may lead to the expanded application of this crime.Secondly,it raises the problem of application confusion between this crime and the crime of fund-raising fraud.Thirdly,it is pointed out that due to the large number of victims involved in this crime,the difficulty of obtaining evidence and the inconsistency of multiple appraisal opinions during the audit appraisal led to differences in the determination of the crime amount of this crime.Finally,the "pocketization" trend of the crime is explained through the analysis of actual cases and the differences in the legislative and judicial aspects of the object of the crime.The third part is the focus of this article,that is,a detailed analysis of the issues raised in the second part of this article.Firstly,the relevant data of the Supreme People's Procuratorate and China Judgment Documents Network are listed,and the "pocketization" trend of this crime is demonstrated through data analysis.The relevant documents of the judicial organs for handling such cases are discussed in the judicial organs' law enforcement The tendency is to point out that this crime is the basic crime of fund-raising fraud and has a bottom-up color.On this basis,the cause of the "pocketization" of this crime is analyzed.Secondly,through the development of Internet finance and the alienation of private lending,the reason that the crime is prone to crime and non-crime and the confusion of the crime and the other crimes is demonstrated.The fourth part provides suggestions for solving many problems raised in the second part of this article.The first problem to be solved is the distinction between this crime and the other crime,that is,to clarify the thinking of "illegal possession purpose" in the crime of fund-raising fraud,and to distinguish the crime from the crime of fundraising fraud based on the damage caused by the actor's fund-raising.Secondly,through the improvement of legislative interpretation,the concepts of "public propaganda" and "deposit" in this crime were clarified,and the identification criteria of this crime were improved,and then this crime was distinguished from legitimate private loans.Finally,the issue of the determination of the amount of crime is divided into the determination of the amount of repeated investment and the determination of the purpose of absorbing deposits.Regarding the determination of the amount of repeated investments,the analysis and demonstration have shown that if the victim recovers the principal at the end of the investment period,and then invests again,the amount of the crime should be calculated cumulatively;if the victim does not recover the principal and interest after the expiration of the investment period,the two parties re-sign the investment contract and repeat For investments,the amount of crime should not be calculated cumulatively.Regarding the determination of the purpose of absorbing deposits,it is proposed that when an actor uses fund-raising funds for normal production and operation activities,he should examine the proportion of his capital utilization to determine whether his behavior constitutes a crime and constitutes a crime.