Study On The Difficult Problems In Judicial Application Of The Crime Of Illegally Absorbing Public Deposits

The legal benefits protected by the crime of illegally absorbing public deposits should not only include financial management order,but also include the property safety of citizens.This dual legal interest has a structural characteristic of both internal and external layers,so only by infringing on two legal interests layer by layer,that is,infringing on property legal interests after infringing on order legal interests,can this behavior comply with the crime of illegally absorbing public deposits.Starting from the dual legal benefits of this crime,financing based private lending has the possibility of infringing on property legal benefits and incriminating this crime in terms of fund use,investment risks,and disclosure of information.The objective and illegal elements of the crime of illegally absorbing public deposits include the mode of criminal behavior,the object of behavior,and the harmful consequences.The behavior includes "illegal absorption" and "disguised absorption".As a traditional method,"illegal absorption" is relatively easy to understand and judge.To determine "disguised absorption",it can be determined by the flow of funds raised by the actor;The absorption behavior of this crime has a common characteristic,that is,openness.The determination of openness should not be limited to several forms specified in judicial interpretation.Publicity in the form of passive laissez faire can also be recognized as openness.The object of this crime is "public deposits".The term’public’ refers to ’unspecified individuals’ and is not limited to’ majority individuals’.Deposit "should refer to funds,and physical objects cannot become the object of this crime;Aggregated funds and repayment of principal and interest cannot be used as criteria for determining whether it is a "deposit";Starting from the protection of legal interests and the purpose of establishment of this crime,the deposits absorbed by this crime should only refer to the portion used for monetary capital operation.In terms of harmful consequences,if the fundraiser’s act of absorbing deposits does not have substantial harmful consequences,administrative measures can be used at most to impose punishment,and there is no need to impose criminal penalties on them.The distinction between the crime of illegally absorbing public deposits and the crime of fundraising fraud is a classic and difficult problem in fundraising fraud,and the key to distinguishing between the two lies in their subjective purpose.The former crime should have the purpose of operating monetary capital.When the perpetrator uses fraudulent means to draw funds from the advantage of unequal information between the two parties and damages the property safety of the victim,or returns high interest rates exceeding their own profits to investors,it can be deemed to have the purpose of operating monetary capital;The illegal possession purpose of the latter should have the meaning of exclusion and utilization.In view of the problems arising in the judicial practice of the determination of the purpose of illegal possession,we should adhere to comprehensive judgment,attach importance to restrictive interpretation,pay attention to the distinction between the determination of behavior and the determination of subjective purpose,pay attention to the objective situation of "insolvency",and specifically investigate the type and trend of fund use.In addition,the determination of the responsible party for this crime is also a common thorny issue in judicial practice.In terms of the scope of illegal fundraising crimes,branches and internal institutional departments without legal personality,financial institutions with deposit management rights,and financial exchanges can also become the subjects of illegal deposit taking crimes from the public.In terms of identifying joint crimes,the distinction between accomplices and principal offenders can be distinguished by borrowing the theory of criminal fact domination,which divides the different subjects who play a dominant role in illegally absorbing public deposits into two categories and identifies them as the principal offenders in the crime of illegally absorbing public deposits,thus distinguishing them from accomplices.For intermediaries who may formally establish this crime,neutral helpers,and loan applicants who are forced to assist,it is necessary to make a comprehensive judgment from both subjective and objective aspects based on the actual situation.In addition,there should be an objective and subjective dangerous connection between the accomplice’s assistance behavior in this crime and the direct legal interest infringement result of the principal offender.Assistance behavior without subjective and objective dangerous connections can be excluded from the scope of accomplice punishment in this crime.