| In recent years,with the rise of P2P individual network lending platform,the crime of illegally absorbing public deposits appears more and more in the public view.According to the official data released by the Supreme People’s Procuratorate in 2019,from January to October in 2019,there were about 16000 financial crimes and 24000 people arrested by procuratorial organs nationwide,and more than 16000 cases and 30000 people were eventually prosecuted.In financial crime cases,nearly 14000 people were arrested for illegally absorbing public deposits,up 42%and 44%yearon-year,and nearly 8000 cases and 17000 people were prosecuted,up 43%and 50%year-on-year.The number of cases of illegal absorption of public deposits is increasing,and its proportion in judicial application is also increasing.In judicial practice,investigative organs,public prosecution organs and even people’s courts often have the crime of "illegally absorbing public deposits",which is often referred to as "illegal fund-raising".Why in the eyes of judicial personnel and news media,the crime of illegally absorbing public deposits has been turned into "illegal fundraising"?Through a detailed analysis of the development process of the crime of illegal absorption of public deposits into the criminal law,we can see that the legislative improvement of the illegal absorption of public deposits is established with the gradual development of the market economy.From the perspective of historical interpretation,the legislative purpose of this crime is to protect the normal national financial management order from illegal acts,and to maintain social stability.At current stage,the crime of illegally absorbing public deposits does show a certain conflict with economic development,but this conflict is not due to the problems of legislation itself,but the result of improper expansion of the crime in judicial application.By comparing this crime with the crime of fund-raising fraud and legal private lending,the legal interest protected by the crime of illegal absorption of public deposits has its particularity,and it is still necessary to exist.Through empirical research,this paper takes the effective judgments of the national courts on the crime of illegally absorbing public deposits from 2014 to 2020 as the sampling range,and proposes that the factors closely related to conviction and sentencing are statistical dimensions.This paper makes statistics and Analysis on the application proportion,specific illegality judgment,behavior identification and judicial intervention time of the crime of illegal absorption of public deposits in judicial practice,and explores the phenomenon of "delay" of filing a case and"pocketing" of conviction in judicial application based on data.This paper proposes the improvement of the crime of illegal absorption of public deposits.The constitutive elements of the crime should be reasonably defined in substantive law to prevent the improper expansion of the connotation of "deposit".The system of "qualified investor" is introduced to replace the exclusion conditions of specific objects such as "relatives and friends" and "internal personnel".Although financial crimes tend to be light punishment,the current sentencing standards of the crime of illegally absorbing public deposits deviate from the reality and can not adapt to the development of society.It is suggested to adjust the amount of the crime,pay attention to the significance of the number of deposit recipients,and put forward the independent measurement standard of direct economic loss,which should be considered as a discretionary circumstance.Finally,in the visible future,the state’s management of the financial system will continue.As a legal and administrative crime,this crime should have the characteristics of "second violation".By reforming the current financial law system,establishing perfect financial law and administrative law,we can realize the criminal law significance and expected value of the crime of illegally absorbing public deposits. |
