| As market economy in our country develops rapidly, private enterprises need a lot of money to expand production and business operation and civil finance market is extremely active. Illegal and disguised absorbing public deposits appeared in the judicial practice more and more frequently.In order to deal with these non-standard financial activities, a very strict financial regulation system in China has been set up. The law set a high standard of financing and private small and medium-sized enterprise is difficult to obtain sufficient funds. Specific to the level of criminal law, the crime of illegal absorbing public deposits is regulated by the state for regulation of illegal fund-raising activities. However, due to a lot of incomplete related financial legislation, this crime is controversial in academia and practice. This crime is just like a big pocket, including a lot of fund-raising activities in practice, which cause maladjustment between this crime and social and economic development. Therefore, the author hopes that through the analysis of the related worksã€papers and case studies, we can comb and analysis existing disputes in this crime. In this paper, writing ideas is as follows:The first chapter is the analysis about the components of the crime of illegal absorbing public deposits and clear the standard of conviction, which mainly analyzes subject and the objective aspect of this crime. For subject aspects in this crime, the first part is about the distinction between natural persons and units and the second is to demonstrate whether financial institutions which have deposit management can become the subject of this crime. For the objective aspect of this crime, the first part is to affirm the objective behavior characteristics in this crime, and the second is the analysis and comparison between two kinds of criminal behaviors. The last is the explanation to property of "disrupting the financial order" which is the element of this crime.The second chapter is the research and analysis about extraterritorial provisions of property of economic crimes and the crime of illegal absorbing public deposits. This part mainly interprets and studies German and American legislative provisions concerning the economic crime. Determination on the nature of administrative offense, namely legal crimes, and its legal problems on economic crime in German legislation. The provisions of connotation and denotation of "securities" in American legislation, and identification standards of "investment contract" in the case law.The third chapter is the improvement of legislation about the crime of illegal absorbing public deposits. Drawing lessons from foreign advanced legislation experience and according to legislation modes and concrete treatments of the foreign related economic crimes, we can put forward suggestion of feasibility of perfecting the law to hope that provision of this crime can regulate the illegal fund-raising better and more reasonable. The first is to change the concept and method of criminal law regulation, which is embodied in three aspects:the research to the theory of decriminalization of the crime of illegal absorbing public deposits and classifying illegal financing behavior in the way of distinguishing of direct financing and indirect financing, drawing lessons from the American legislation system, in which the securities regulation system is used to regulate the direct financing behavior in illegal fund-raising activities. The second is the embodiment of characteristics of basic structure for the crime of illegal absorbing public deposits, mainly for the detailed definition of the concept of "deposit", "illegal" and "relatives and friends".The fourth chapter is the judicial identification of the crime of illegal absorbing public deposits. Discussing the boundaries between this criminal behavior and similar behaviors, we can clarify crime and non-crime and this crime from that crime in the judicial practice. The first section is the analysis about the relationship of folk lending, entrust finance, private behavior and the crime of illegal absorbing public deposits, and we can determine its conviction standard. The second section is mainly about the analysis of differences between the crime of illegal absorbing public deposits and the crime of fraud fund-raising, the crime of fraud issuing stock, bonds,the crime of issuing shares,the company and corporate bonds without authorization. |
