A Study On The Standard Of Entering The Crime Of Illegally Absorbing Public Deposits

Since the criminal law of China established the crime of illegally absorbing public deposits in 1997,there have been many disputes about the theoretical research and judicial determination of the crime.The purpose of establishing the crime of illegally absorbing public deposits is to protect the financial management order of our country,especially in the era of Internet finance,there are endless cases of illegal fund-raising,so it is necessary to study this crime.This article is divided into four chapters.The first chapter focuses on the study of the premise of the crime of illegally absorbing public deposits,that is,"illegal","deposit","absorption" concept dispute and connotation definition.For the understanding of the concept of "illegal",there are two standards: one is the unitary standard and the other is the binary standard.Specifically,the connotation of "illegal" includes the illegality of the qualification of the deposit subject and the illegality of the behavior content.For the understanding of the concept of "deposit",there are two kinds: the broad interpretation and the narrow interpretation.Based on the legislative purpose of this crime and the analysis of the protection object,the narrow interpretation should be adopted.Deposit is not equal to a wide range of funds.Deposit refers to the funds deposited by the public to qualified banking financial institutions on the basis of credit in order to repay the principal and interest within a certain period of time.Behind the deposit lies the source of funds,the flow of funds and the purpose of absorbing funds.The theoretical disputes on the concept of "absorption" can be summarized as "absorption theory" and "absorption and lending theory" "Theory of money and capital operation",from the perspective of rational criticism,the connotation of the concept of "absorption" should be defined as "theory of absorption and lending",which conforms to the legislative purpose and specific legal interests of this crime.A study on the standard of the crime of deposit.The second chapter focuses on the current situation of the crime of illegally absorbing public deposits,that is,the dilemma and causes of the crime.The core of this crime’s dilemma lies in the vague boundary between crime and non crime,which is manifested in the confusion of judicial determination in the fields of private lending,private fund raising and network crowdfunding.The reason is that the concept of this crime is not clear,and there is no reasonable and perfect standard of entering crime.Based on the dilemma of entering the crime of illegally absorbing public deposits and the lack of a reasonable and perfect standard of entering the crime,chapter three focuses on the constituent elements of the crime.In order to return to the purpose of legislation of this crime,the criminal object of this crime has been innovated in essence by sorting out and criticizing the theoretical disputes of the criminal object,which is specifically defined as the financial management order of financing and lending.In the objective aspect,the determination of harmful behavior should adhere to the position of substantive interpretation,combine with the four behavioral characteristics established by specific judicial interpretation,and make it clear that the criminal object of this crime is the public deposit.The quantitative standard of the specific circumstances of the determination of harmful results should be increased by five to ten times,so as to realize the improvement of the entry threshold of this crime.The subject of the crime should be the general subject,no matter whether there is a financial institution with or without the qualification of deposit,it can constitute the crime.As for the subjective aspect of this crime,its subjective fault is intentional.Based on the concrete object of the crime,the actor is required to have criminal purpose,which is to engage in loan business.This specific criminal purpose is the subjective constituent elements that the crime must have.The fourth chapter focuses on the practice of the crime standard of illegal ly absorbing public deposits,and divides the crime into three parts: private len ding,private fund raising and online crowdfunding.According to the principle of legality,only when private lending,private fund-raising and network crowdf unding meet the specific elements of the crime,can they be included in the sc ope of the crime.The specific criteria for entering the crime are as follows: w hen the fund-raising actor absorbs deposits from the public and uses them for lending,and the criminal circumstances meet the prosecution criteria,the object of the crime will be actually violated,and the subjective purpose of engaging in the loan business will be met.Only when the specific constitutive require ments of the crime are met,the crime can be entered.