Analysis Of The Criminal Law Of The Act Of Pooling Public Deposits In Disguised Form

The act of absorbing public deposits in disguised form means that without the approval of the competent authority,the actor does not absorb public deposits in the name of absorbing public deposits,but through other forms to absorb funds from unspecified objects in the society.However,the actor undertakes to fulfill the same obligations as the act of absorbing public deposits,which are both principal and interest repayment activities.In recent years,criminals often use more hidden ways to "absorb" public deposits,which not only constantly impact the national financial management order,but also cause great damage to social stability.Although China has issued a number of judicial interpretations to regulate "disguised absorption",with the progress of society and economic development,coupled with the lag and incomplete characteristics of the law itself,there are still some problems in judicial practice,such as the disunity of judicial determination standards and the unclear definition of crime and non-crime,this crime and other crimes.The article discusses from four parts.The first part summarizes the legal combing,constituent elements,characteristics and types of the behavior of disguised public deposit absorption.In 1995,commercial Banking Law adopted the legal concept of "disguised absorption" for the first time.In 1997,disguised absorption of public deposits was included in criminal Law for the first time.Since then,laws and regulations have continuously improved it.The behavior of absorbing public deposits in disguised form has the characteristics of illegality,openness,sociality and inducement.According to the characteristics of the behavior of disguised public deposit absorption,it can be divided into "borrowing type" and "borrowing legal business form" disguised public deposit absorption.The second part analyzes the status quo and problems of disguised public deposit absorption.In China’s judicial practice,it is mainly determined by "four characteristics" of disguised public deposit absorption,and at the same time,according to the normal market transaction behavior is the key to identify the disguised public deposit absorption behavior of "borrowing legal business form".Branch offices and internal departments cannot become the subject of disguised public deposit absorption,while financial institutions with deposit qualification can become the subject of disguised public deposit absorption.In judicial cognizance,first of all,there is the problem of unclear application of the bottom-saving clause.Secondly,the boundary between this act and other illegal fund-raising is unclear.Moreover,there is no clear boundary between the act of disguised public deposit absorption and the act of illegal public deposit absorption,which leads to ambiguity in the determination of facts and the application of law in judicial practice.The third part analyzes the problems of crime and non-crime,this crime and other crimes.The author thinks that the folk lending behavior and the behavior of absorbing public deposits in disguise,which is not harmful,do not belong to crimes.On the question of this crime and that crime,according to whether there is the purpose of illegal possession to distinguish this behavior and fund-raising fraud,according to the overall evaluation principle analysis of this behavior and illegal business behavior according to the real purpose of issuing stocks,corporate bonds to distinguish this behavior and unauthorized issuance of stocks,corporate bonds.The real purpose of issuing stocks or corporate bonds is to exchange funds for capital expansion,which shall be deemed as unauthorized issuance of stocks,corporate bonds or enterprise bonds.The fourth part,in view of the disguised absorption of public deposit behavior of judicial issues put forward suggestions.First of all,the homogeneity interpretation rule is applied to the bottom-saving clause by clarifying the applicable premise,essential attribute and harmfulness.Secondly,the legislative interpretation should be improved,and the identification standards of objective constituent elements and subject elements should be unified,so as to form a unified standard for the identification of the behavior of disguised absorption of public deposits and prevent the occurrence of different judgments in the same case.Third,pay attention to distinguish "disguised absorption" and "illegal absorption",detailed identification standards.Fourthly,from the perspective of legislative intention,it follows the principle of modesty and restraint of criminal law,and calls for optimizing the supervision of new financial institutions,so as to limit the occurrence of disguised absorption of public deposits.