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

With the rapid development of the Internet economy,Internet finance has made great progress,but the frequent bankruptcy of Internet platforms in recent years has made the prosperity of Internet finance once frustrated.In the face of the era of strict financial supervision,all departments are strengthening the supervision of Internet finance,and the judicial department has also shifted the focus of criminal law to illegal fund-raising crimes.The crime of Fraudulent Fund-Raising is mainly related to the crime of illegally absorbing public deposits and the crime of fund-raising fraud.For entrepreneurs,the criminal risk to be prevented is mainly the crime of illegally absorbing public deposits,which is the most frequent crime for entrepreneurs.However,according to the relevant data,the number of cases of fund-raising fraud has been increasing in recent years,and the pressure of prevention and control of the risk of fund-raising fraud has been increasing.Since the legal maximum penalty for the crime of illegally absorbing public deposits is lower than the crime of fund-raising fraud,in the distinction between this crime and that crime,the prosecution and defense often have disputes in judicial practice.In order to distinguish the two,the mainstream view is that if the illegal fund-raising actor has the purpose of illegal possession subjectively,the crime of fund-raising fraud is established,otherwise the crime of illegally absorbing public deposits is established.Therefore,the purpose of illegal possession is the key to distinguish the two,but the purpose of illegal possession as the subjective psychological state of the perpetrator,the mainstream view is that the purpose of illegal possession exists as the subjective excess element,and there is no corresponding objective element,so it is difficult to directly determine that the perpetrator has the purpose of illegal possession according to the objective circumstances.At present,in theory and practice,the proof of subjective excess elements is generally used as a presumption,so as to determine the subjective psychological state of the actor.After all,however,the presumption is not a direct proof of the facts,if the presumption is established,the defendant will bear the consequences of the negative evaluation of the criminal law.Therefore,it is necessary to reflect on how to proceed and put forward the main direction of improvement.In the first part of this paper,by analyzing the data of the crime of illegal fund-raising,it is considered that the crime of illegally absorbing public deposits and the crime of fund-raising fraud are the main crimes involved in the crime of illegal fund-raising.At present,the number of crimes of fund-raising fraud is rising,and the rate of heavy punishment and imprisonment is far higher than that of similar crimes.What is the deep reason behind it is to be explored in this paper.The second part of this paper makes a detailed interpretation of the boundary between the crime of illegally absorbing public deposits and the crime of fund-raising fraud through law,and holds that the purpose of illegal possession is the key to distinguish the two in practice.However,the purpose of illegal possession as a subjective state of mind,the practice of the determination often appear a variety of disputes.Therefore,the Supreme Court and the Supreme Procuratorate,according to the changes of social economy,through the issuance of judicial interpretation,the typification of the purpose of illegal possession,to provide guidance for practice,is also a gradual attempt to establish the presumption of "illegal possession purpose".These judicial interpretations satisfy the function of legal clarity and unification,but also bring about theoretical controversy.To some extent,judicial interpretation is designed to cater to the public opinion of many "fund-raising victims",thus ignoring the unique commercial thinking in financial activities.The third part of this paper focuses on the theoretical concept of "the purpose of illegal possession".Possession is the concept of civil law,based on the protection of civil law property rights,gradually absorbed by the provisions of criminal law.For the purpose of illegal possession,excluding meaning and using meaning is its basic element,around which the theoretical circle has produced many disputes.As far as China's reality is concerned,the main content of the purpose of illegal possession should include excluding meaning and using meaning,which can not be treated separately.The purpose of illegal possession plays a key role in understanding the relationship(or difference)between the crime of illegally absorbing public deposits and the crime of fund-raising fraud,but the purpose of illegal possession,as a subjective excess element independent of criminal intent,has no corresponding objective element.This is the main reason why it is difficult to identify the purpose of illegal possession,and it also determines that it is the only way to use presumption to judge whether it has the purpose of illegal possession.The fourth part of this paper,through the comparative analysis of analogy and presumption,holds that the presumption is allowed in the current criminal law,and the presumption method is widely used in the Anglo-American criminal law to determine the subjective psychological state of the defendant.On the one hand,the theoretical circles also provide a set of methodological guidelines for criminal presumption.The fifth part of this paper mainly reflects on the presumption of "the purpose of illegal possession ".After a comprehensive analysis of the presumption theory of the purpose of illegal possession,although the presumption is the only way to judge the establishment of the purpose of illegal possession,it is also necessary to dare to admit that the presumption may also infringe on the legitimate rights and interests of the defendant,and the practice does appear the situation of presumptive abuse.Therefore,the presumption should allow counter-certification and reject only the theory of injurious consequences.In order to clarify which situations can be promoted and which can not be presumed,judicial interpretation provides for a negative list that can be presumed to have the purpose of illegal possession,but it should also provide for a positive list that can not be presumed to have the purpose of illegal possession.Moreover,the introduction of legal interest recovery theory can effectively limit the abuse of presumption.