On The Legal Issues Concerning The Disposal Of Property Involved In Illegal Fund-Raising

In recent years,China’s rapid economic development,the financial market,private capital for financing demand continues to rise,but in the process of private financing,there have been large amounts of illegal fund-raising behavior,seriously disrupting China’s financial regulatory order,endangering financial security,undermining social stability.However,judging from China’s current practice of disposing of property involved in illegal fund-raising crimes,there are still problems such as vague standards for property involved in the case,irregular allocation of rights in the advance disposal mechanism,and confusion in the multi-departmental cooperation mechanism for property involved in the case.In view of this,this thesis intends to start from the above problems,bottom on clarifying the relevant theoretical basis and defining the relevant research scope,to analyze and study the main problems existing in the legislation and judicial practice of the disposal of assets involved in illegal fund-raising crimes in China,and then put forward corresponding improvement suggestions in combination with China’s actual conditions.Firstly,through the "Fuxing case",this article leads to several problems in the disposal of assets involved in the illegal fund-raising crime: the lack of a clear concept of the assets involved in the case,the lack of review of the advance disposal system,and the confusion of the multidepartmental cooperation mechanism for the disposal of the assets involved in the case.At the same time,the concept of illegal fund-raising,the principles and scope of the identification of assets involved in the case,the disposal measures and theoretical basis of the property involved in the crime of illegal fund-raising are analyzed.This article argues that the criteria for determining the crime of illegal fund-raising should have the characteristics of "illegality","inducement" and "sociality".Since "openness" is a means of achieving "sociality","openness" should not be taken as an element of the crime of illegal fund-raising.The grasp of the concept of assets involved in the case must adhere to the principle of judges’ reservation and balance of rights.The scope of property involved in the crime of illegal fund-raising may be divided into direct illegal gains and indirect illegal gains in terms of their relevance and exclusivity,and shall be accurately distinguished and properly disposed of.The measures for disposing of property involved in illegal fund-raising crimes mainly include three categories: recovery,ordering return and confiscation,of which recovery is a procedural measure to protect the rights of entities and is enforced after trial,and a non-final disposal measure.Considering the complexity of the actual situation,the stolen money and stolen property that has been illegally raised by a third party in good faith should be ordered to be returned instead of a one-size-fits-all recovery method;ordering a refund is a procedural measure that is not made orally by the administration to ensure the return of property.Secondly,this thesis sorts out the legislative and judicial status of the asset disposal system involved in illegal fund-raising crimes in China,and finds out the main problems in the disposal of illegal fund-raising crimes in China.At present,The main legal norms related to the disposal of property involved in illegal fund-raising in China mainly include: "Strict Implementation of the Provisions on the Handling of Property Involved in Smuggling Cases," "Provisions on the Management of Assets Involved in Criminal Proceedings of the People’s Procuratorates," "Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery," "Several Provisions on the Management of Assets Involved in Cases Involving Public Security Organs," and "Provisions on procedures for Public Security Organs in Handling Criminal Cases." The above-mentioned legal norms respectively provide for the disposal of the property involved in the case from the perspective of the nature of the property involved in the case,the scope of the property involved in the case,and the object and conditions for the prior disposal.Through analysis and combing,it was found that the main problems in the asset disposal system involved in the crime of illegal fund-raising in China are: First,the standards for the property involved in the case are vague.The distribution of power in the stage of criminal proceedings in China is disordered and the structural setting is not reasonable,the three organs of the Public Prosecutor’s Law have too much power at their respective case stages,and the procedural provisions for coordinated handling between institutions are not perfect;second,the allocation of rights in the advance disposal mechanism is not standardized.Because the investigation departments themselves identify the assets involved in the case and implement compulsory measures on the property,there is no need for approval and verification by other organs,and the disposal work is not implemented with the trial as the center,the mechanism for the prior disposal of the assets involved in the case is not conducive to the trial work to verify the evidentiary materials and ascertain the facts of the case;third,the multi-departmental cooperation mechanism for the disposal of the assets involved in the case is chaotic.China’s provisions on the content of disposal procedures are not uniformly regulated,and the supervision methods,initiation methods,and scope of application of each entity in the disposal process are not clarified.When the administrative disposition model and the criminal disposition model exist in the same case,a unified disposition plan cannot be issued.The main reasons for the above problems include the following three aspects: First,there is a lack of a system for the identification and review of the property involved in the case.Since the investigation department does not need to submit objective evidentiary materials to prove that the property is related to the facts of the case,it only needs to subjectively determine that it belongs to the property involved in the case and can take compulsory measures,which can easily lead to the abuse of the power of the investigation department;second,there is a lack of independent third party to carry out the prior disposal procedure.China stipulates that the property of the four attributes can be disposed of first,and the scope is too extensive.Investigation departments have self-authorized or carried out their own actions when disposing of assets involved in the case.Third,China lacks a supervision and restraint mechanism in the structure of the advance disposal procedure.The legislation does not provide for the right of initiation and enforcement,and the subject of disposal is not clear,resulting in the quality and efficiency of the disposal of the property involved in the case being affected.Finally,bottom on an in-depth analysis of the system for disposing of assets involved in illegal fund-raising crimes in China,combined with China’s national conditions,this thesis proposes a three-aspect improvement plan: First,establish and improve the judicial review system for assets involved in the case.Investigation departments shall submit written applications with evidence to support them,supplemented by court approval as the main body,supplemented by the approval of the responsible person for emergency investigation departments.The second is to establish a system for office of the public prosecutor to handle and approve the handling of the case in advance.Since the office of the public prosecutor no longer have the function of investigating crimes abusing public office and are in a neutral position before initiating public prosecution,the procuratorate may be introduced as the subject of the adjudication in advance.Upon verification by the procuratorate,whether it meets the conditions for the property involved in the case to be disposed of in advance,whether the property is at a high risk of significant loss of value,and whether the owner of the right to the property agrees to dispose of it first,determine whether to initiate the procedure for the first disposition,and ensure that the disposal process is open and transparent;third,a working group is established to cooperate with the disposal of the property involved in the case.Establish working mechanisms with court adjudication as the lead and other organs cooperating.The court led the establishment of an asset liquidation team and issued a clear distribution plan to complete the appraisal of the value of the property involved in the case and the later asset liquidation work.