Judicial Determination Of The Crime Of Illegal Absorbing Public Deposits

The continuous improvement of our country’s national economy has brought rich nourishment to the financial market,and the rapid development of Internet finance has also incubated a series of new business models such as online lending and crowdfunding.While the market economy is active and financing channels are broadening,due to the lack of guidance and regulation of private financing behavior by the state,the financing platform established has not been included in the safety supervision of administrative agencies.Many speculators take this unregulated area to absorb a large amount of private funds for their own use,and the crime of illegally absorbing public deposits has therefore become the crime with the largest number of cases of disrupting the order of financial management.The crime is often complicated,involving a wide range of people,and the property of each investor cannot be recovered.This not only disrupts the order of the financial market,but also poses a threat to social stability.Whether the punishment for the crime of illegally absorbing public deposits is reasonable or not has a huge impact on the defendant,fund-raising participants and their families.Therefore,it is necessary to discuss the difficult issues and unify the judgments and handling methods of similar cases.The paper selected the first-instance verdicts of the crime of illegally absorbing public deposits from 2017 to 2019 in Shandong Province and Guangdong Province during the three years from 2017 to 2019 as a sample for statistics and comparisons.Through the analysis of statistical sample judgment documents,it is found that the judgments have different opinions on the identification of the guilt and conviction of the crime and the key elements of the crime.At the same time,there are problems such as vagueness of the court’s reasoning.There are doubts and differences in the judicial determination of the crime of illegally absorbing public deposits.In summary,there are four main points:The first is the determination of the level of guilt of the actor,that is,which level of the defendant is guilty and punished,there are problems that need to be standardized and unified;The second is the determination of the defendant’s subjective intention.Most of the judgments only described the defendant’s objective implementation of the conduct,and did not fully reason whether there was a subjective intentional reasoning.When the defendant’s lack of subjective and intentional defense opinions proposed by the defender were not accepted,no reasoning was elaborated and explained;The third is the determination of the amount of crime.In practice,there are obvious differences in opinions regarding whether the principal and interest of repeated investments should be included in the amount of crime and whether the investment amount of relatives should be included in the amount of crime.The unclear definition of the amount of crime will lead to the unresolved issue of whether the defendant’s refund amount should be deducted from the amount of crime;the fourth is the determination of the illegality of the illegal financing platform.In the judicial determination,There are problems in the judicial determination that there is no basis for determining the illegality of the platform,the non-returning of investors’ funds is used as the standard for determining the illegality of the platform,and the threshold for illegality of the platform is too low.The stakeholder characteristics of illegally absorbing public deposits are very prominent.For this reason,it is necessary to rationally determine the "incriminated class" of the charges based on the level of awareness of the legal interests of the crime of illegally absorbing public deposits.In the determination of this crime,whether the perpetrator has subjective intention is very important.Therefore,it is necessary to introduce the debate procedure of the perpetrator’s subjective deliberate determination in such cases.Regarding the determination of the "criminal amount",it is necessary to clarify the connotation and extension of the "criminal amount" and distinguish it from the amount returned by the defendant.For the determination of illegality of illegal financing platforms,it is necessary to subdivide the evaluation index elements of the platforms,and clarify the division of illegal fund-raising platforms and legal financing platforms whose purpose is to illegally absorb public deposits.In addition,the state should also improve the current laws,regulations,and judicial interpretations accordingly,and modify the unreasonable points.The relevant departments should strengthen the daily inspection and management of the financing platform,and link the financing platform with the credit investigation system to facilitate investors’intuition.Understand the investment risks of the platform and prevent the crime of illegally absorbing public deposits from the source.