The Theory Of Identification Of The Purpose Of Illegal Possession Of Fund-raising Fraud Crime

In the process of the cognizance of the crime of fund-raising fraud，besides toprove the illegal fund-raising behavior, the offender has illegal possession purposealso must be proved. Any crime subjective aspect is externalized by means ofobjective behavior and performance. By the known facts to analysis the offender’sobjective behavior, calculated the perpetrators subjective whether has the purpose ofillegal possession. This presumption method is take by our country judicialinterpretation.，there are mainly1996《The explanation of the law about the concreteapplication of trialing fraud cases》、2001《The work symposium summary about thenational courts trial financial crime cases》、In2011the implementation 《Theexplanation of The supreme people’s court on law of a number of problem theconcrete application of trialing illegal fund-raising criminal cases》.But these threejudicial interpretations are not identified purpose of illegal possession directly frombehavior, mainly from the behavior after obtaining funds,that funds is obtainedillegal、the situation of disposal of funds.Such a presumption basis, not only violatedthe principle of subjective and objective be consistent, but also violated theresponsibility principle, and caused the confusion in practice, easy to cause theobjective imputation. And it is unfavorable to blow the crime of fraud in the initialphase.The case of wuying, as a typical form of crime of fund-raising fraud, hasreceived the widespread attention all social groups from crime to make a finaljudgment. Problems appeared in the wuying case are very typical, especially thecognizance of the purpose of illegal possession is controversial. And the fund-raisingfraud crime, as a special fraud crime, has the unique characteristics of the behaviorof financial crime.That characteristics makes the cognizance of the purpose ofillegal possession more difficult. So, this article try to explore how to identify theillegal possession of fund-raising fraud in the judicial practice on the basis ofdiscussion of the connotation of the purpose of illegal possession, using the method of combining the practice and theory, in the perspective of the wuying case and usingidentified problems of the purpose of illegal possession in the wuying case as astarting point. Hope that through accounting for this problem, to provide guidanceand support for the judicial practice, so as to better safeguard the criminal suspect’shuman rights and the public and private property rights, to achieve the unity of theindividual interests and social interests.This article take put forward questions-analysis problem-solve problems asthe structure of the full text of this paper. First of all, the author put forward theproblem of the purpose of illegal possession in the wuying case from the focus ofthe dispute problems in the wuying case. In the sentence, the court accepted the pointof view of prosecution organ, that wuying still absorbed a large number of funds inthe case of knowing that she have no ability to repay, and profligacy after obtainingfunds. But this view exists the suspicion of objective imputation on the substantivelaw, and did not rule out a reasonable doubt on the procedural law. Second, illegalpossession in criminal law should be distinguished from illegal use and "illegalpossession" of the civil law, through analyzing the meaning of "possession" and theviews of the domestic and foreign scholars about the purpose of illegal possession.And combining with fund-raising fraud behavior characteristics concluded that thepurpose of illegal possession of fund-raising fraud refers to actor subjectively has theintention that can make property completely separate from the holder of the controland to be the holder in a similar position as the real holder illegal control ordominate illegal raised funds. Then, combining with the understanding of thepurpose of illegal possession in this paper, this paper analyze the existing judicialpresumption basis causing confusion in theory and practice. And this paper putforward that identifying the purpose of illegal possession should adhere to theprinciple of consistent the subjective and objective, real and full evidence, lowevaluation. And establishing the behavior standards, that is, identifying the purposeof illegal possession rely on illegal financing behavior that directly, and the judicialpresumption as supplement. The certificate standard not only has a strongoperational in the judicial practice, in favour of punishing fund-raising fraud in the initial stage,but also is consistent with the theory of crime constitution and theconsistent of the subjective and objective in traditional criminal law.