A Study on the Crime of Illegal Absorbing Public Deposits
|Keywords||Illegal absorbing public deposits Constitutive requirements Private lending Improvement of the legislation|
The crime of illegal absorbing public deposits has experienced a process from legislation, and it is ahigh incidence of crime at present. Under current economic conditions, due to the folk spontaneousfinancing efficiency, without cumbersome formalities for examination and approval, many enterprisesconsider it as the main way for their funding sources, although there are some laws about how to financeand the means of financing, the folk financing legal system is still not perfect, the risk of folk financingbehavior can not ensure the safety of the funds circulation, it is easy to cause the public property loss, theseriousness will cause the chaos of national financial credit management order and hinder the developmentof market economy.For the punishment of the illegal absorbing public deposits, if the circumstances are minor, generallynot to be punished, if the circumstances are serious, to impose criminal punishment, such punishmentmodel can play a blowing role in the harm behavior, however, due to this kind of behavior, it can bringhuge economic benefits for illegal fund raiser, the lure of high profits makes illegal absorbing publicdeposits despite repeated prohibition, the actor directly "deposits" or "flip" the folk capital to lend, poseserious threats to the social public property, such as "the wu ying case" in practice, affecting a wide range,and causing serious consequences, as to these behavior, criminal law gives severe punishment. But tooharsh punishment also causes extensive controversy among the social people from all walks of life, ispunishment for this kind of behavior right? Or is too much of a good thing? With the development ofmarket economy is this more good than harm or more harm than good? Suddenly this is becoming a topicto discuss among people.As to the focus of dispute in practice, the author of this paper, from two aspects of theory and practiceexplores the basic problems for illegal absorbing public deposits, which can be divided into four parts inspecific, namely, the legislative evolution for the crime of illegal absorbing public deposits, crimeconstitution, the cognizance of the crime and non-crime and legislative perfection. Through comparativeanalysis for the above four parts, it is hoped to be able to more accurately identify the crime in practice, tobetter regulate the crime behaviour of illegal absorbing public deposits. This paper can be divided into the following four parts:The first part: mainly introduces the legislative evolution of illegal absorbing public deposits in ourcountry, and the current legislative situation for this crime. There is no related regulation specified in thecriminal law in1979, the establishment has experienced from scratch to process, rules for behavior ofillegal absorbing public deposits can be seen in administrative rules and regulations at the earliest, and withthe development of the society administrative rules and regulations were not able to regulate this kind ofillegal behavior, and a special criminal law was launched, therefore, in the end, this crime was establishedin1997penal code, aiming at new problems arising from the practice, and a series of judicialinterpretations were set up to help practice cognizance of this crime.The second part: the first key part of this article, mainly analyzes the crime constitution for illegalabsorbing public deposits. The understanding for the four aspects of this crime constitution in academiccircles is more controversial. As to the focuses, the author through analysis concludes that, in terms ofcriminal subject, it should include a financial institutions that are of qualification to absorb publicdeposits;from the crime objective aspect, it lists and defines the behavior for the "illegal absorbing publicdeposits" and "disguised absorbing public deposits", in order to practice the cognizance for this kind ofharm behavior, as for crime subjective, the author considers that, as long as the offender has intentionallysubjective state of mind, no matter whether it has the "credit". In terms of crime object, by comparing theacademic point of view, and it is concluded that this crime’s criminal object is the national financial creditmanagement order.The third part: from the theory and practice the judicial cognizance of crime of illegal absorbingpublic deposits are discussed, which is another focus of this article, the author first analyzes the cognizanceof the crime and non-crime, then carries on the detailed analysis for the concept and characteristics ofentrust financing and private lending, thus draws the conclusion that this crime has substantial differenceby comparing with the above two kinds of behavior, secondly, combining with the related judicialinterpretation, by contrast, the characteristic for the following three crimes: fund-raising fraud, the crime ofsetting up financial institutions without authorization, and the crime of issuing stocks or company orenterprise bonds of sin, thus the difference with this crime is clear, through comparison and analysis, it is ofgreat practical significance to better affirm this crime in practice. The fourth part: mainly introduces the loopholes of this crime, and how to perfect the crime for illegalabsorbing public deposits in legislation. Through making research on related legislation regulations for thiscrime abroad, this analyses the deviation for the legislation of the crime of illegal absorbing public depositsin China, and puts forward some aspects that should be complemented and furnished, in order to play abigger role in practice.