Research On The Purpose Of Illegal Possession Of The Crime Of Fraudulent Fund-Raising

In the process of the recognition of the crime of fraudulent fund-raising, the mostcontroversial issue is of its subjective aspect, especially the recognition of the purposeof illegal possession which is in tendency of extension of judicial control andprevention with the verticale comparison of “1996Interpretation”,“Minutes”and “2010Interpretation”, reflecting as the extension of the meaning of illegal possession,prolongation of the ending time of subjective purpose raising, consecutive decline ofjudicial recognition standard and items and scope increased of judicial presumption.The aforesaid extension has brought so many problems in the operation of theoryand practice of criminal law. On one hand, some traditional criminal legal theoriesand views are challenged in some degree, such as the theory of intentional crime andcrime accomplishment, the purpose of committing,“illegal possession” and theprinciple of objective and subjective unity etc. On the other hand, due to theincompetent ductility and the vague expression of the legal provsions,, thedistinguishing of different crimes in judicial practice is affected in some degree andconviction in case becomes confusing.The tendency and the problems above are caused for various reasons. Since thecrime of fraudulent fund-raising with a unique nature of belonging to the cross part offinancial fraud crime and illegal fund-raising crime under the different standards of criminal division, it becomes stricter over and over under the influence of plentycriminal policies and the intervention of national criminal rights. Meanwhile, with thecommon acceptance of a single and objective identified trend, the recognition scopeof the purpose of illegal possession is extending accordingly in the judgment of thesubjective aspect of crime.In “Wu Ying case”, the prosecution and defense debate fiercely on whether WuYing has the purpose of illegal possession, the result of which will have a directimpact on the criminal cognizance as well as the final sentencing. The judgement ofthe case reveals a seriously recognition method, overemphasizes the protection of thesociety interests with less considerations of human rights protection and individualopinion and reflects the idea of taking criminal law as a tool and depending on thepenalties dependent.The current strictly standard used in recognition of the purpose of illegalpossession of the crime of fraudulent fund-raising has many shortages to solve theproblems in theory and practice and implies a worrisome opinion of heavy penalty.On the issue of the recognition of the purpose of illegal possession of the crime offraudulent fund-raising, I suggest adopting a limited interpretation based on theprinciple and element of “illegal possession”, and choosing a tolerant way toward it.The traditional theory and the principle of crime and penalty definitely stipulated byLaw, especially the basic theory of an intentional crime system and the principle ofobjective and subjective unity should be strictly implemented in the judicial practicewithout a unilaterally breakthrough. Should have a strictly control on the standard ofproof without a unilaterally incrimination. Meanwhile, when making a selection of thecrime of fraudulent fund-raising issues, especially the purpose of illegal possession,the essential nature should be deemed as a starting point and precondition andimplement in a proper range of the “Mercy” side of the Criminal Policy of TemperingJustice in consideration of the principle and element of this crime.