Research On The Determination Of "Illegality" In The Crime Of Illegally Absorbing Public Deposits

From the criminal law of our country,the description of the crime of illegally absorbing public deposits is a blank crime,and its illegality should belong to the objective constitutive requirements of the crime,while the pre financial norms are a supplement to the constitutive requirements of the criminal law.As a statutory offense,this crime needs to have dual illegality,and it is necessary to clarify the connotation and extension of “illegality”,and explicitly invoke the legal position of the pre financial law in the form of legislation,specifically including laws,administrative regulations,departmental rules Other normative documents such as industry specifications.The preceding regulations shall be invoked in accordance with the principle of non conflict with the superior law,and shall be explicitly given the same effect as the law.However,in judicial practice,due to the rapid changes in the social environment in which the Internet economy is booming and gradually moving towards a digital economy,the criminal law needs to improve the illegal identification of new financial forms in illegal fund-raising.Similarly,as a red line for maintaining the national financial order and protecting the legal interests of public property,illegal absorption of public deposits also requires a more realistic interpretation of the criteria for determining its illegality.Among the “four characteristics”of the crime of illegally absorbing public deposits,the “illegal” characteristic should be taken as the primary prerequisite for determining a legal offence.This article provides a systematic review of the theoretical and practical controversies related to the crime of illegally absorbing public deposits.Firstly,starting from the characteristics of the crime of illegally absorbing public deposits,the key to the “illegality” of this crime,its association with illegal fundraising,and the differences in the determination of“illegality” between administrative subjects are analyzed.Secondly,there are currently theoretical controversies regarding the criteria for determining “illegality”,including disputes over formal and substantive standards,and disputes over “illegality” as an objective constituent element.Once again,we will sort out the current problems caused by the connotation and extension of “illegal” expansion,and analyze the specific manifestations of the original and existing problems of expansion.Finally,in response to the problems caused by the expansion of the current “illegal” identification standard,a limited application should be explored,and an analysis should be conducted from the principles of criminal modesty,the theory of quality differences,and the finality of judicial identification.This study believes that in terms of the four characteristics of the crime of illegally absorbing public deposits,“illegality” should be the primary criterion for identification.In the current controversy over the determination of“illegality” in this crime,although the substantive standard of this crime is a support in the absence of administrative regulations,for the crime of illegally absorbing public deposits,both the formal and substantive illegality of the criminal act should be taken into account in the sentencing judgment,and substantive law should be used as the substantive standard to protect the legitimate rights and interests of relevant subjects,Based on this,the author believes that the dual standard of “form+substance” should be used to determine the illegality of this crime.In the process of determining the crime of illegally absorbing public deposits,“deposits” based on the crime of illegally absorbing public deposits have been alienated as "funds".However,under the legislative model of statutory offenses,the objective constituent elements of “illegal”this crime have been generalized,leading to the expansion problem in the application process of this crime.In order to better maintain market vitality and effectively protect the rights and interests of legitimate financial institutions,the author believes that the theory of “quality difference” should be adopted,In the face of the growing number of illegal fund-raising cases of Internet financial crime,on the basis of identifying administrative illegality,the independence of the criminal law should be used to judge whether it should be punished.Only when administrative illegality has a serious legal interest infringement,the criminal law should be considered.Distinguish between administrative illegality and criminal illegality of this crime based on the difference between “quality” and “quantity”,and measure the determination of “illegality” of this crime based on the “quality difference theory”.In addition,the “illegal”determination of the crime of illegally absorbing public deposits should follow the principle of restraint in the criminal law during the judicial determination process,and limit the application of the crime of illegally absorbing public deposits.The determination of administrative illegality is not based on administrative pre procedure,and criminal judicial organs can make a one-time determination of administrative illegality and criminal illegality.