An Empirical Research And Rule Improvement Of The Conviction And Sentencing Of Illegally Absorbing Public Deposits

On the basis of not changing the crime of illegally absorbing public deposits,the "Amendment to the Criminal Law(11)" has increased the punishment of this crime by adjusting the sentencing structure,which undoubtedly increases the theoretical discussion of this crime and the hidden worries of severe punishment.In terms of conviction,whether the discretion conferred by simple facts of the crime has caused judicial practice to misunderstand the elements of "disrupting financial order","illegality","absorption behavior","public deposits",etc.,resulting in the trend of "catch all crime" and against the modesty of the criminal law;the measurement of penalty focuses on whether there is a realistic basis for the revision of the sentencing rules in the 2022 Interpretation of Criminal Cases of Illegal Fund Raising,and whether the increase in statutory punishment causes the proliferation of doctrine of severe punishment.Facing the judicial needs and the new revision of sentencing,taking 1087 judgments in 2021 as the research sample,conduct an inductive analysis of the conviction part by descriptive statistical methods,and comprehensively understand the factual status of various theoretical disputes in judicial determination;secondly,construct a linear regression model of the sentencing factors and the judgment results through the SPSS software,so as to explore the application status and disadvantages of the current sentencing rules,and find a realistic basis for judicial interpretation to revise the sentencing rules.In addition to the introduction and conclusion,the research content of this paper is mainly carried out from the following four aspects:The first part,"Ask Questions".In terms of conviction,the theoretical disputes over the four elements of the crime of illegally absorbing public deposits are sorted out: the legal interest of the crime is unclear,the characteristics of "illegality" are vague,the absorption behavior is extensive,and it is difficult to define public deposits.Comparing different academic viewpoints horizontally,it is found that the dispute over the legal interest of this crime has two diametrically opposite directions.One is to refine the relatively general financial order stipulated by the criminal law into multiple categories,and the other is to advocate the introduction of capital security interests on the basis of the original legal interests to reposition the protection scope of this crime.There are two main problems in the understanding of "illegality".One is whether the preexisting financial norms include departmental regulations,and the expansion theory,restriction theory and compromise theory are derived.Secondly,the characteristics of "illegal" is divided into unary standard and binary standard.At the same time,the academic community’s understanding of the crime of illegal absorption and disguised absorption mainly starts with the characteristics of the behavior,lacking a systematic analysis of the type of behavior,and there is also a lack of unified identification of the interpretation of the two concepts of "public" and "deposit".In terms of sentencing,the new revision of the criminal law has aroused the concern of the academic community about the doctrine of severe punishment of this crime.In the absence of a large sample and big data to reflect the whole picture of sentencing,analyzing the disadvantages of the judicial application of the original sentencing rules and the influencing factors of sentencing,is beneficial to provide the new revision of sentencing for this crime seeks a realistic basis and direction for revision.The second part is the empirical analysis of conviction.Taking the seven conviction elements that reflect the four constituent elements as statistical dimensions,descriptive statistics and typed analysis are carried out respectively,and the proportion of the statistical factors of each conviction element in judicial practice is represented by intuitive data.The fit analysis is used to explore the understanding and application of criminal legislation in judicial practice.The results show that judges vaguely identify the connotation of criminal interests,avoid citing preformative financial norms,rigidly apply the "unlicensed" unitary formal standard,and ignore the reasoning of the "borrowing legal form" substantive standard,which leads to the confusion of illegal absorption and disguised absorption;In addition,judicial practice generally pays attention to the "unspecific" nature of the "public",irrelevantly ignores the "numerous" characteristics,and neglects to examine the use of deposits,which have virtually resulted in the expanded application of the crime of illegally absorbing public deposits.The third part is the research on the application status and characteristics of sentencing rules.Using the descriptive statistics method and the linear regression model in SPSS software to study the sentencing mechanism of the old version of "judicial interpretation of illegal fund-raising",the inspection results show that the setting of two statutory penalty scales is difficult to deal with the significant effect of sentencing factors on reducing reduction.Coupled with the low standards for filing a case,the sentencing presents the characteristics of heavy sentences for misdemeanors and light sentences for serious crimes.At the same time,judges are faced with the dilemma of the choice of sentencing benchmarks,and the problem of the limit of mulct,which makes the issue of unfair sentencing in both free sentences and mulct.Finally,the application rate of probation is relatively high,but there are problems of different application standards.In the fourth part,it reflects on the criminalization rules and new revisions of sentencing for the crime of illegally absorbing public deposits,and puts forward suggestions for improvement.In terms of conviction,firstly,the criminal object of this crime is clearly limited to the state’s financial management order on deposit-taking,so as to avoid from the order law interests to the scope of capital security law interests.Secondly,the dual determination standard of "illegality" in form and substance is improved,and direct financing and indirect financing are distinguished,and infer the subjective malignancy of the actor based on objective aspects such as behavioral characteristics and the purpose of deposit.Finally,if the purpose of deposit is used for production and operation,"whether the fund-raising participant has understood the necessary information for fund-raising activities" is used as the standard for distinguishing whether it is specific or not,so as to solve the problem of financing difficulties for small and micro enterprises;set a quantifiable number of people for the "public",so as to clarify the boundary between crime and non-crime.In terms of sentencing,the Interpretation on Criminal Cases of Illegally Raising Funds raises the threshold for criminal convictions,the maximum statutory penalty and the amount of fines,which is of practical significance to alleviate the sentencing imbalance of heavy sentences for misdemeanors and light sentences for serious crimes.Choose sentencing benchmarks,standardize the application of return of illicit property and compensation,reasonably apply probation and exemption from criminal punishment,so as to rationalize sentencing.