A Study On The Application Of Criminal Law To The Crime Of Illegally Absorbing Public Deposits

In the recent 20 years of our country,illegal fund raising had become frequently happen due to the contradiction between capital demand and supply as well as the lack of investment channel.When it comes to the crime of illegal fund raising,it mainly related to the Crime of Illegally Absorbing Public Deposits.The top reason is the low conviction standards and obscure definitions made it a controversial problem in juridical practice.Thus,in order to strengthen the connection between theoretical study and juridical practice,how to solve these problems,how to consummate its definition under the new economical background had caused great public attentions.Four parts are included in this paper.The first part is the basic narration of the Crime of Illegally Absorbing Public Deposits,narrating the legislation evolution of this crime.Introducing the legislative situations in the United States of America,Japan and German.On this basis bring out the academics hot topic of discussion on whether it should be annulled.The author consider remaining this crime on this phases,because the lack of mature outer environment and it will increase the risks of the investment of public asset,what’s more,threaten the credibility of the government and the authority of judiciary.The second part is the analysis of constitutive requirement of the crime,discussing the complicate object that this crime infringe.Regarding the main object is the management order of a nation,the second object is the safety of depositor’s fund.On the perspective of behavior,the author consider that the world illegal should be understand in a generalized way,and a real subject and securities can not analogize to deposit.But regard as disguised absorption,in this way the time of a complete crime can be lengthen.Showing the restraint of the criminal law.The author regards financial organizations as the subject of this crime.Although this crime is not the intent crime yet,the author suggests adding the requirement on the purpose of loaning.The third part briefly analyze the booming of the third party payment,P2 P network lending and the crowd-funding,analyzing risks of the crime showing up in these platforms.Precipitation funds in the third party payment,investment of fund are not included can not be regarded as this crime,the fund pool of the P2 P,fake information of loaning and the Ponzi scheme,their patterns of behavior belong to Illegally Absorbing.Equity-based crowd-funding does not belongs to this crime.The fourth part is to probe the judicial determination of this crime.On the distinction between crime and noncrime,the difference to trust management,is to find out whether it promise break even and pay interest,whether separating the business of self-supporting and be commissioned.While folk loaning is to judge it by whether the subject is specific.On the distinction between this crime and the other crime,the author consider the difference to the crime of fraud in financing is mainly on the purposes and usages on the absorbed fund,financial capacity of the fund raiser and operating condition,consequences and the ability to pay back.While the crime of setting up a financial institution without permission and the crime of issuing stocks,company and enterprise bonds without permission is to exchange funds by real note,but the crime of illegally absorbing public deposits is only nominally,for those behaviors which illegally absorbed public funds by issuing stocks,company and enterprise bonds without permission,should be regards as the crime of illegally absorbing public deposits.