On The Distinction Between The Crime Of Illegally Absorbing Public Deposits And The Crime Of Fund-raising Fraud

The "Criminal Law Amendment(11)" has further revised and improved the crime of illegal fund-raising,increased the legal maximum sentence for the crime of illegally absorbing public deposits,and adjusted the sentence structure of the crime of fund-raising fraud to increase the penalty.This severe punishment is a response to social calls,and it also shows in one aspect that the crime of illegal fund-raising has become a major ailment in the current economic field of our country.Illegal fund-raising crimes mainly include the crime of illegally absorbing public deposits and the crime of fund-raising fraud.The two crimes have similar behavior patterns,and both involve the process of illegal fund-raising.The behavior contains some deceptive elements to a greater or lesser extent,purely from the behavioral model.It is difficult to distinguish between the two crimes.According to the description of the two crimes in the Criminal Law,it can be seen that whether it has a subjective "purpose of illegal possession" has become the key to the distinction between the crime of illegally absorbing public deposits and the crime of fundraising fraud.In judicial practice,although a large number of defendants claim that they do not have the purpose of "illegal possession," few cases have been amended.The reason is that the mainstream view believes that the "purpose of illegal possession" is subjective over elements,and the determination of a crime does not need to have a corresponding objective element,which makes it difficult to determine the "purpose of illegal possession" directly based on objective circumstances.The judicial presumption method is the best choice for determining the subjective purpose in this situation.How to adhere to the problem orientation,combine the interpretation of the connotation of "illegal possession purpose",reduce the possible disputes in the presumption process,and provide systematic and unified identification path thinking,is the thinking direction of this article and the expected result.The first part of this article is "proposition of the problem".After thinking about typical cases,the problem that is still worth studying in theory is how to determine the "purpose of illegal possession" in illegal fund-raising crimes scientifically and accurately.At the same time,the dilemma between the crime of illegally absorbing public deposits and the crime of fund-raising fraud has already emerged.The search for the crux of the problem requires the support of data.This part adopts empirical analysis methods to clarify the identification path and tendency of "illegal possession purpose" in judicial practice.The second part of this article is "the intended connotation,function and structure of the " purpose of illegal possession "".The proof and presumption of any element of criminal law should be based on the concept of substantive law.For the "purpose of illegal possession",it is first necessary to clarify that it exists as a subjective excess element,which is difficult in judicial determination;secondly,it must be clear that its connotation includes the meaning of exclusion as the side of law and the meaning of utilization as the side of economics.Judicial practice should avoid separating the two.In situations where there are conflicts between factual evidence,the interpretation of the substantive connotation of the "purpose of illegal possession" as the starting point can be used to achieve sufficient interpretation.The third part of this article is "Regulations of Illegal Fund-raising Crimes and Analysis of Judicial Cases".At present,there are mainly three judicial documents stipulating the criteria for determining the "purpose of illegal possession" for the crime of fundraising fraud.The changes in the legislative documents reflect the increasing consideration of the "purpose of illegal possession" and the continuous refinement of the determination standards.However,some clauses in the regulations tend to be incompatible with criminal law theory,and there are arguable points in the principle of unity of subjective and objective,the power and duration of possession.In addition,through analysis of cases,it is found that in practice,the courts often use“loss results”,“fraud behaviors” and “knowingly incapable of restitution” to determine the “ purpose of illegal possession ”,which may result in objective conviction and difficulty in eliminating reasonable doubts.The fourth part of this article is "Considerations on the Path to Identify the Purpose of Illegal Possession in the Crime of Fundraising Fraud".In view of the various problems existing in legislation and judicial practice,while reflecting on the various problems,a new way to amend is proposed: the determination of the "purpose of illegal possession" should be based on the behavioral structure of the crime of fundraising fraud,adhere to comprehensive judgments and attach importance to restrictive interpretation;fraud The determination of behavior is distinguished from the determination of subjective purpose;the mode of determining subjective purpose based on the results should be changed,focusing on the objective conditions of the behavior at the time;attention should be paid to the determination of "illegal possession purpose" under different fund uses and trends,and commercial thinking should be injected.Pay attention to case analysis;finally,in order to ensure the uniformity and systemicity of judicial presumption standards,the judicial presumption mechanism should be improved,the methods and standards of counter-evidence should be filled in,and the concept of legal interest restoration should be tried to be introduced.