Research On The Criminal Regulation Of On-Line Peer-to-Peer Lending

As a new-born financial mode, online P2 P lending emerged with the development of the Internet technology and mobile communication technology. It is a combination of the traditional financial industry and modern information technology, which helps to broaden our investment channels and stimulate the reform of the financial system. Nevertheless, due to the lag of legislation and the poor administrative supervision, there exit lots of legal risks in the development process of online P2 P lending. Thus, how to improve the criminal regulation and leagl supervision of online P2 P lending comes to be one of the key issues which attracts the attention of criminal law scholars. This paper describes the overview of online P2 P lending, analyzes the legal supervision path, discusses various types of criminal risks that may be involved in the lending process, and gives regulation advice on the side of judicial application.This paper is divided into four parts:The first part is the overview of online P2 P lending, which introduces the concept of online P2 P lending, the process of its development, the causes that bring it about and its basic operation modes. As a kind of "exotic", online P2 P lending has been able to take root and continue to develop in socialist China since 2006, which attributes to many reasons. The supply and demand imbalances caused by the economic development provides suitable social soil for the birth of online P2 P lending, and the unique advantages possessed by online P2 P lending makes it welcomed by both lenders and borrowers. In addtion, our current policies and laws have been encouraging and protecting the development of online P2 P lending. For example, the criminal law and relevant judicial interpretations have also made some changes, such as narrowing the application scope of crimes like illegal fund-raising in order to give greater space for the surviving and development of online P2 P lending. All these reasons lead to a good development tendency of online P2 P lending. At the same time, online P2 P lending keeps to adjust itself constantly to form various operation modes in order to adapt to different economic environments and meet different economic needs, this paper also makes a comb.The second part analyzes the regulatory path of online P2 P lending and proposes an overall regulatory thinking system. That is, taking the administrative supervision as the main regulatory path and taking the criminal penalty as the supplementary path. In the other side, as to the regulatory rank, it is very significant to take advantage of the non-legal norms to do the advance prevention work, make full use of financial administration laws for the supervision of the transaction process and legally use the criminal penalty to punish the behaviors against criminal law. Meanwhile, paying attention to the effective convergence between the administrative supervision and the criminal regulation shall be equally important.The third part makes a detailed description of the possible criminal risks which maybe involved in the developing process of online P2 P lending due to the lack of appropriate regulations and guidance from two aspects. In the side of online P2 P lending platform, first of all, because the platform of online P2 P lending in our country doesn’t belong to the legally-allowed formal financial institutions and its fund-raising activities have not been approved by the relevant departments in accordance with law either, the current mode of fund-raising is suspected of the crim of illegally absorbing public deposits. Secondly, if the fund-raising behavior of online P2 P lending platform not only meets the four basic features of the crim of illegally absorbing public deposits, which are illegality,openess, inducement and socialization, but also possess the purpose of detinuing of the fund-raising money, then the platform is suspected of the crime of financial fraud. Finally, in the actual course of business, many online P2 P platforms may also be suspected of constituting the crime of setting up financial institutions without authorization and the crime of issuing stock, and corporate bonds without authorization. In the side of lenders and borrowers, apart from being suspected of constituting a joint crime with online P2 P platforms, the lenders may also utilize the flaw of the platform’s auditing to commit money laundering crime or commit the gregory lending crime under the temptation of high lending rates. As to the borrowers, it is probably for them to commit the crime of contract fraud through emploiting the virtual feature of Internet trading.The fourth part analyzes the problems of criminal regulation of online P2 P lending and points out that although the development process of online P2 P lending contains a certain amount of criminal risks, its tremendous value of innovation shall not be neglected. The biggest obstacle encountered in the development course of online P2 P lending comes from the lagging legal system, thus, before the adjustments of the current criminal code, with regard to the online P2 P lending industry, the criminal law shall interve modestly rather than strangle blindly. The intervention to nascent industries of criminal law shall be kept within certain limits, which is also the requirement of the tolerance of the criminal law. To implement this criminal judicial idea, this paper firstly analyzes the incrimination standards of various behaviors in the area of online P2 P lending from the ought level, and clarifies the specific connotation of the standards of undermining the financial management order, illegality and serious social harm. Then, this paper elaborates the specific limits of the intervention to online P2 P lending area of criminal law, analyzes the reasonableness and necessity of limiting the application of the crim of illegally absorbing public deposits and the crime of financial fraud, and provides concrete advices from the angles of conviction and sentencing.