The Narrowing Application Path Of The Crime Of Illegally Absorbing Public Deposits

This paper searches the number of cases of illegal absorption of public deposits in the past 10 years through the handle case platform,and finds that the number of cases of this crime has shown an overall upward trend.Although it has decreased in2018,the number is still alarming.At the same time,statistics show that the proportion of the number of cases of this crime in the number of cases of crimes against the order of the socialist market economy shows an overall upward trend,with2018 being the same as 2017.Therefore,it is concluded that there is a tendency to expand the application of the crime of illegally absorbing public deposits in judicial practice in the past ten years.The market-oriented development of non-governmental finance is the trend of the times and is irreversible.At the same time,it is also the only way to reform the market economy.With the advent of 5G era,the physical distance between people has been broken,and private finance has developed rapidly relying on Internet platform.This has also led to chaos in financial market transactions and affected the stability of economic development.However,unlike the planned economy era,criminal policy has now shifted from absolute monopoly of the state to financial transaction standard.This has deprived the expansion of the application of the crime of illegally absorbing public deposits in judicial practice of policy support.At the same time,the expansion of the application of this crime has seriously hindered the innovation and development of private finance.In this paper,the following three chapters are studied as the framework:The first chapter is the analysis of problems and difficulties.Through the analysis of the number of cases of illegal absorption of public deposits in the past 10 years,it is found that this crime has expanded its application in judicial practice.In view of the legislative "deficiency" caused by the vague provision of Article 176 of the Criminal Law,judicial interpretation should have assumed the important task of filling in the essence of legal interests and provided clearer guidelines for the judicial application of this crime.However,under the influence of the criminal policy of financial monopoly and subject to the limitation of cultural interpretation,the judicial interpretation excessively focuses on the formal elements of this crime and ignores the exploration of legal interest protection of this crime.The judicial interpretation of relevant laws and regulations such as "Fund-raising Interpretation" and "Fund-raising Opinions" has four provisions that characterize this crime: publicity,illegality,inducements and sociality.Legal private lending is also included in the scope of criminal law regulation due to its similarity in form to the behavior characteristics of this crime.Relevant judicial interpretations lack substantive judgment on the protection of legal interests of this crime,which makes the crime circle of this crime unreasonably expanded.There is a lack of application of the incriminating clause in judicial practice.Once the behavior conforms to the characteristics of publicity,illegality,inducement and sociality in form,then a large probability will be defined as the crime of illegally absorbing public deposits.The first chapter is roughly divided into three parts: the first section is the discovery of problems;the second section is the representation of expanded application.article 176 of the criminal law,as the major premise for the application of this crime,due to the vagueness of its own language,this crime lacks normative guidance in judicial practice.at the same time,the relevant judicial interpretation provisions of this crime are not reasonable,which leads to the expanded application of this crime in judicial practice.the second section is divided into three aspects: there are cases where "social funds" and "public deposits" are mixed in judicial interpretation,and cases where the concept of "illegal fund-raising" is mixed in administrative law The third section is to analyze the negative effects brought by the expanded application of this crime.First,the expanded application of this crime breaks through the principle of modesty of criminal law.Second,it violates the principle of legality.Finally,this expanded application inhibits the development of emerging financial entities.The second chapter is theoretical reflection and discussion of solutions.The academic circle can be divided into three camps to expand the application of this crime.However,neither the "legislative abrogation theory" nor the "judicial restraint theory" nor the "restrictive application theory" are the best methods for the application of this crime.Under the background of the rapid development of Internet finance,this article believes that this crime still has its necessity.De-incrimination will only bring hidden dangers to the order and safety of the financial market due to the relevant serious financial crimes.Chapter II can be roughly divided into two parts: Section I is to sort out the impact of traditional financial policies on the application of this crime.It is specifically divided into two aspects.Firstly,it reviews the history of traditional financial policies.Since the founding of the People's Republic of China,the emergence and development of China's financial policies,meanwhile,it explores how traditional financial policies affect the concept of legal interests of this crime.At thesame time,it points out that sticking to the old concept of "legal interests of order" is bound to run counter to the financial policies of deepening financial reform.The second section is to explore the influence of financial policy reform on the application of this crime.At the same time,it introduces a new perspective of financial criminal policy to break the limitation of previous understanding of this crime.Through the introduction of this new concept of financial criminal policy,it hopes to help judicial applicators to better apply this crime.This crime can also achieve its normative purpose,so that judicial practice can punish its crime,thus maintaining the authority of criminal law.Through combing the influence of the reform of China's financial and criminal policies on the protection of legal interests of this crime since the reform and opening up,this paper further discusses the new path of the application of the limitation of this crime in judicial practice.The third chapter is based on the second chapter,to explain the limitation of the crime of illegal absorption of public deposits.From the perspective of the judicial practice of this crime,the judicial organ determines whether this crime is established or not,usually by judging whether the behavior conforms to the provisions of the judicial interpretation on "illegal","open","absorption","deposit" and other elements,that is,the application of the crime of illegal absorption of public deposits follows the rules of formal interpretation.Judging from the current judicial application of the crime of illegally absorbing public deposits,the definition and interpretation of the crime of illegally absorbing public deposits in "explanation of fund-raising" and "opinions on fund-raising" all explain this crime from the perspective of behavioral representation,thus guiding the judicial application of the crime of illegally absorbing public deposits.This kind of explanation method that does not judge the value of the essence of the crime seems objective and fair,but in fact it will raise to the height of the criminal law those acts that only conform to the regulations in terms of behavior characteristics,but in essence lack the content of infringement of legal interests,as well as non-governmental loans that do not reach the level of crime and can be regulated by this crime.This kind of activity,which only explains the literal meaning of the law but does not evaluate its value,is convenient for judicial application,but it affects the normal development of the private financial market in the current environment.This article explains the drawbacks in the judicial application of this crime by analyzing the form,and then skillfully combines the financial criminal policy with the purpose explanation to explain the crime of illegally absorbing publicdeposits under the guidance of the criminal policy.This can not only get rid of the inherent subjective arbitrariness of traditional purpose interpretation,but also reinterpret article 176 of the criminal law so as to better apply it in judicial practice.On this basis,the author puts forward some suggestions on the application of the restriction of the crime of illegally absorbing public deposits.