An Empirical Study On The Purpose Of Illegal Possession Of The Crime Of Fund-raising Fraud

"Illegal possession purpose" is one of the statutory components of the crime of fund-raising fraud.To identify the criminal act of fund-raising executed by the defendant as the crime of fund-raising fraud,it is necessary to prove the existence of "illegal possession purpose" in the subjective psychological aspects of the defendant’s behavior.However,in practice,unless the defendant can take the initiative to confess to the judicial department,it is generally difficult to directly identify the purpose of illegal possession.Therefore,the determination of "the purpose of illegal possession" has become a difficult problem in judicial practice.To solve this problem,the Supreme People’s Court has issued three judicial interpretations or meeting minutes which are closely related to it.However,in terms of the practical effect reflected at present,the corresponding judicial interpretations or meeting minutes still face difficulties in the concrete implementation.Based on the consideration of the difficulty in the identification of "illegal possession purpose" in practice,this paper randomly selects 500 judgments related to the "illegal possession purpose" of fund-raising fraud crime as the analysis samples,and summarizes the shortcomings of the current judicial identification.On this basis,the author sorts out and comments on the provisions concerning the identification of "illegal possession purpose" of fund-raising fraud crime in the laws and regulations and judicial interpretations that have been in effect or are being implemented in China.At the same time,the paper reviews the theoretical proposition of "illegal possession purpose" identification of fund-raising fraud crime by combining the viewpoints of practical work,and finds the reasons for the problems in the judicial determination of "illegal possession purpose".Based on the consideration of practice,norms and theories,the optimization and improvement suggestions are put forward in the end.In addition to the introduction,the body is divided into four chapters,and the main content of each chapter is as follows:First chapter,randomly selected from 500 related to the crime of fraud of the raise "the purpose of illegal possession" of the judgment as sample to make empirical analysis,from the understanding of criminal behavior attitude,the defendant rebuttal reasons the defendant,the court ruled that the related factors of subjective purpose,"the purpose of illegal possession" time to analyze the sample point,the hierarchy of the defendant judicial cognizance.On this basis,it summarizes the difficulties in determining the "purpose of unlawful possession" in the current judicial practice,including the fact that the proof does not reach the standard of beyond reasonable doubt,the presumption of the prior purpose with the result after the fact,and the emphasis on the accusation opinion and the neglect of the defense opinion.The second chapter,respectively elaborated in 1996 "Interpretation",2001"Summary",2010 "Interpretation" on the crime of fund-raising fraud "illegal possession of the purpose of the provisions,and made the corresponding comments and analysis.On the whole,the 2010 Interpretation is a revision of the 2001 Summary,which,to a certain extent,expands the crackdown on the crime of fund-raising fraud.At the same time,it analyzes the four characteristics of the cognizance norm,that is,cognizance norm disguised to admit the intention after the event;The connotation extension of illegal possession purpose is enlarged;Expand the matters and scope of criminal presumption;The identification of the purpose of illegal possession in the crime of fund-raising fraud conflicts with the theory of purpose crime.The analysis of the corresponding normative texts and their characteristics frames the local context of theoretical analysis.The third chapter discusses the theory and theory of the judicial determination of "illegal possession purpose" of fund-raising fraud crime,and chooses the theory and theory to guide the determination through comparative study.To understand the connotation of "the purpose of illegal possession",we adopt the viewpoint of common theory of criminal law in our country,and think that it has both the meaning of use and the meaning of exclusion.On this basis,the paper puts forward the factors that should be considered in the identification,including grasping the commercial law and commercial characteristics of the crime area of fund-raising fraud,and paying attention to the blocking significance of legal interest recovery to the identification of illegal possession purpose.The fourth chapter,in view of the problems reflected in the judicial practice,puts forward optimization suggestions for the identification of "illegal possession purpose" of fund-raising fraud crime: in terms of philosophy,it is necessary to adhere to the principle of the unity of subjectivity and objectivity,and judicial modesty.In terms of identification methods,it is suggested to adopt the path of combining positive presumption with commercial exception standard,to limit and explain the complicity of fund-raising fraud based on the modest restraint of criminal law,to refine the determination skills of fund-raising fraud amount,and to establish a comprehensive evaluation system.In the aspect of implementing safeguard,it is necessary to improve the response system of defense opinions.