Research On Judicial Determination Of The Crime Of Illegally Absorbing Public Deposits

In recent years,the crime of illegally absorbing public deposits has been maintaining a high incidence,which is undoubtedly closely related to the situation of the flood of illegal fund-raising in the country.However,the utilization rate of this crime is so high that it has even become a "back-up" crime to crack down on illegal fund-raising.The defects and deficiencies of this crime itself are also an important factor.This crime is stipulated in Article176 of the Criminal Law,which is very abstract.It uses many normative elements such as "illegal","public" and "deposit" to make the law obscure.Moreover,there are also some defects in the "four characteristics" standard of this crime in judicial interpretation,which leads to the vague boundary of this crime and easy entry into the crime.In the face of illegal fund-raising,the government has been carrying out the policy of severely cracking down.Under great social and political pressure,the judicial organs also focus on taking criminal measures against illegal fund-raising.However,the defects in the relevant legal provisions of this crime provide aspects for the practice of this idea.In judicial practice,the rigid identification mode without distinguishing the financing method,fund use and absorption means directly leads to the expanded application of this crime.The expanded application of this crime not only violates the principle of legal punishment and the modest spirit of criminal law,but also compacts the legal space of private financing,which is not conducive to the protection of property rights of private enterprises.Therefore,it is urgent to correct the deviation of judicial determination of this crime,so as to limit the application of this crime.On the one hand,the judicial organs should change the judicial concept of focusing on criminal attack,give full play to the role of legal hierarchy,and prevent the criminal law from becoming the primary means to crack down on illegal fund-raising.On the other hand,it is necessary to modify the relevant provisions that lead to this crime easy to enter but difficult to come out.The "four characteristics" criteria should be re-examined,such as strictly limiting the scope of the "law" conforming to the "illegality" provisions,taking the participants into a wrong understanding as a prerequisite for the establishment of the "inducement",and taking the participants'own characteristics into full consideration in the identification of the"public",etc.The legal interest of this crime is defined as double legal interest,and only the illegal fund-raising that destroys the national financial management order and causes damage to the safety of public property is included in the regulation scope of this crime.The law should clearly stipulate that the act of raising funds"for the purpose of production and operation"should not be treated as the crime.