A Study On The Validity Of Private Lending Contracts In Illegal Fund-raising Cases

In view of the fact that private lending has gradually developed from the traditional rescue-type lending in the acquaintance society to the lending among strangers for the purpose of investment,the speculative psychology of both the borrowers and the lenders lays a fuse for the crime of illegal fund-raising,such as the crime of illegal pooling of public deposits and the crime of illegal collection of funds by fraudulent means.Once the crime broke out,the borrower was found to constitute a crime,the borrowed money was deemed to be a part of the boodle,how to determine the effectiveness of the private loan contract signed between the lender and the borrower becomes a knotty problem.In judicial practice,the Court’s treatment of this issue presents a chaotic situation: the conclusion of validity and invalidity of the contract coexist;the reasonings used by different courts to reach the same conclusion are quite different;different courts have different understandings of the same legal text.The status quo of the judgment of this kind of contract validity,which has not unified standard,unclear application of law and unclear reasoning,has seriously affected the judicial authority and the unity of legal order.Therefore,it is necessary to analyze the validity of the non-governmental loan contracts concerning the crime of illegal fund-raising.The thesis mainly consists of four parts except for the conclusion part.In the first part,analyzing the present situation of judicial adjudication.Based on the keywords of the borrowers being convicted of illegally absorbing public deposits and the crime of fraud in assimilation of public savings respectively,the cases were searched and screened.Through the analysis,it is found that the judicial practice has not reached a unified conclusion on the validity of the issue discussed in this article,and there is still a problem of ambiguous reasoning.Therefore,it is necessary to study this issue in order to help unify the application of law and to clarify the guidance of conduct.In the second part,analyzing the reasons of the present situation of this kind of judgment.Through the study,there are mainly four reasons: the relevant legal provisions are not clear;because of the impact of the illegal monism,the idea of the primacy of public law,and the improper analysis of the cross-types of civil and criminal,the relationship between civil law and criminal law has not been clearly defined;some judges’ understandings of legal provisions is inappropriate;and it is overly restricted by the original intention of protecting the order of private lending and the security of transactions,and failure to properly protect the interests of creditors.In the third part,clarifying the cognizance logic of the validity of the private loan contracts concerning the crime of illegal fund-raising.By combing the existing relevant legal provisions and determining the relatively independent relationship between the civil law and criminal law,it is clear that the legal basis of the issue should be the norms of the civil law.Considering the current situation of non-governmental finance,the order of transaction and the protection of the interests of creditors in China,by analyzing the relevant provisions of the financial law and the criminal law,starting with the normative meaning of Deposit,it is clear that the non-governmental loan contracts involving the crime of illegal fund-raising with the purpose of indirect financing,such as reloaning and investment in securities,are invalid because of violating the mandatory provisions of financial law.And referring to those,in which the funds are used for production,operation or other direct financing purposes,once they are related to the crime of fund-raising fraud,they may be revoked by the part of creditor;and when they involve in the crime of illegally absorbing public deposits,they are effective.In the fourth part,setting out the operability for reviewing the use of the loan.Clarifying the meaning of three different types of fund uses.And in the light of different situations,determining whether the intended or actual use of funds should be examined.At the same time,the factors that can be taken into account in judging the lenders’ knowledge of the fund uses are explored.At last,the conclusion part summarizes the essence of the validity of non-governmental loan contracts in illegal fund-raising cases,that is,balancing the interests between civil law and criminal law,national financial order and autonomy of will,etc.,expects the legislature to make further regulations on this issue,and points out the shortcomings of the paper.