Viewpoint | A brief analysis of the crime of illegally absorbing public deposits

Published:

2022-05-17

The case of the crime of illegally absorbing public deposits is currently one of the most "hot" crimes in the field of criminal crimes, coupled with the "Criminal Law Amendment (11)" and the "Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising" With continuous attention, the intention of cracking down and warning is obvious. This crime has various manifestations, from traditional private lending and cooperative investment to an innovative financial form integrated into the "Internet". Various models involving fund-raising may touch the legal red line of the crime of illegally absorbing public deposits. In judicial practice, it has been expanded to a "pocket crime" of illegal fund-raising crimes ". Combined with the practical experience of the crime of illegal absorption of public deposits, the author summarizes the common defense ideas for reference. 1. subjective argument Evaluation of (I) subjective intention The subjective aspect of the criminal suspect and defendant of the crime of illegally absorbing public deposits can only be constituted by direct intent. As long as the perpetrator has a profit-making purpose, it is not necessary to ask whether the benefit is actually obtained. According to the first paragraph of Article 4 of the opinions on handling criminal cases of illegal fund-raising in 2019, it can be seen that: "to determine whether the criminal suspect or defendant has the criminal intention of illegally absorbing public deposits, it shall be based on the evidence of the criminal suspect or defendant's employment, professional experience, professional background, training experience, administrative punishment or criminal investigation for similar acts, as well as the way of absorbing funds, publicity and promotion, contract materials, business processes, etc, combined with its confession, a comprehensive analysis and judgment." Although the above opinions have identified the key points of review that should be focused on, once combined with complex actual cases, the specific review will still become one of the focal points of controversy in practice. For defense lawyers, the assessment of subjective intent should be based on the performance of objective behavior, but also to avoid the error of purely objective attribution of loss results. The author believes that the following aspects should be judged: 1. Focus on examining the commonalities and differences of verbal evidence between the perpetrator and other suspects, witnesses and victims in the same case, and compare the contradictions to determine whether they have direct intent; 2. Conduct a comprehensive review of the perpetrator's past experience and background to determine his or her level of awareness of the act and infer whether the perpetrator knew or should have known; 3. Review the actor's job position and content to determine whether it can recognize the possibility of illegally absorbing public deposits; 4. Conduct a comprehensive analysis of the actor's post-event behavior and performance to confirm the subjective aspect of the behavior at the time from the side. Determination of (II) subjective purpose Because the amount of crimes involved in illegal fund-raising cases is particularly huge, in practice, there will be a qualitative dispute between the prosecution, defense and trial for the crime of fund-raising fraud and the crime of illegally absorbing public deposits, which is faced with many times in the cases handled by the author. The upper limit of the statutory sentence for the crime of fund-raising fraud is life imprisonment, while the upper limit of the statutory sentence for the crime of illegally absorbing public deposits is 15 years. In order to effectively protect the legitimate rights and interests of the defendant, the defender should accurately grasp the nature of the act-whether it has the purpose of illegal possession. Article 7 of the interpretation of the Supreme People's Court on Several Issues concerning the specific application of law in the trial of criminal cases of illegal fund-raising, which came into effect on March 1, 2022, is to stipulate the authenticity of project financing, the legitimacy of the use of funds, the certainty of the flow of funds, the legality of fund-raising methods, the attitude of return and the non-fraud of related acts. The author believes that the defender should focus on excluding the following situations: 1. Whether most of the funds involved in the case have not been used for production and operation activities, or whether they have been put into production and operation in name but have been withdrawn or transferred through various means; 2. The cost of using the funds is so high that there is no realistic possibility of paying all the principal and interest; 3. After receiving the funds, whether the actor is extremely irresponsible in making decisions on the use of the funds, resulting in a large funding gap; 4. The return of principal and interest is mainly done by borrowing new and repaying the old. The Debate of 2. Subject (I) Attaches Importance to Unit Crime The distinction between unit crime and individual crime (including natural person joint crime) is one of the important defense strategies in illegal fund-raising cases. For illegal fund-raising cases that may constitute unit crimes, the defender can establish the defense direction of unit crimes in a timely manner according to the needs, and according to the duration and number of illegal fund-raising carried out by the unit, the scale of funds, the flow of funds, the frequency, the investment of manpower and material resources, the proper operation of the unit, the impact and consequences of criminal activities and other factors, and realize the defense of light crime or innocence by legal means. Of course, the defender should pay attention to the fact that the new judicial interpretation has blurred the boundary between unit crime and individual crime, and the intention of this move should be specifically grasped. Distinction between (II) master and accomplice In the case of the crime of illegally absorbing public deposits, the status and role of each person in the case must be distinguished in order to reflect the adaptation of crime and punishment in sentencing. Generally speaking, the organization, planner, and leader of illegal fund-raising criminal activities, the main implementer and the main profit-takers, should be identified as the principal offender; for the secondary implementer who accepts the arrangement and instigation of others to carry out illegal fund-raising activities, or only provides The helper of the backstage support behavior, or the "fund-raising intermediary" who is driven by interests to help illegal fund-raising and collects commissions and other fees can be recognized as an accessory according to law. In practice, for positions such as financial personnel, business personnel, administrative personnel and technical personnel, it is necessary to make specific judgments in combination with the circumstances of specific cases to determine their criminal status. In particular, attention should be paid to personnel in financial and business departments. They should often contact the core business of non-smoking behavior, and the focus of punishment in this crime is also on the capital and business ends, with a higher risk of being identified as the principal offender. Thus, the modesty of criminal law limits the scope of criminal accountability to organizational planners and active participants, and whether the specific persons involved in the case need to fall within this scope and the identification of the principal and accessory has become one of the focuses of attention. 3. objective argument Identification of Non-suction Four Characteristics of (I) The four characteristics that constitute the crime of illegally absorbing public deposits are "illegality, openness, inducement, and non-specificity". In my opinion, we can focus on "illegality" and "non-specificity". Because this crime overlaps with private lending, the difference is mainly reflected in the above two points, and "illegality" is highly abstract. How to define it does not have obvious practicality in practice. Some "private lending" itself does not have clear legal provisions, which belongs to the scope of contract autonomy and does not require the legal permission of relevant departments. Therefore, it is impossible to distinguish the difference between illegal absorption of public deposits and private lending. With regard to "non-specificity", the crime of illegally absorbing public deposits requires an unspecified object, while legal private lending is an act of establishing a creditor's rights and debt relationship with a specific object, and the two are different. However, how to characterize the behavior of raising funds from a sufficient number of specific objects? Whether it constitutes the crime of illegally absorbing public deposits remains controversial. However, it should be noted that the 2019 Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Handling of Criminal Cases of Illegal Fund-raising stipulates: "In the process of absorbing funds from relatives and friends or internal personnel of the unit, knowing that relatives and friends or unit Internal personnel absorb funds from unspecified objects and indulge; for the purpose of absorbing funds, absorb social personnel as internal personnel of the unit, and absorb funds from it; publicize to the public, and at the same time absorb funds from unspecified objects, relatives and friends, or internal personnel of the unit", the above three situations will still be recognized as absorbing funds from the public. Determination of the amount of (II) crime The amount of the crime is one of the important bases for the conviction and sentencing of the perpetrator in the case of the crime of illegally absorbing public deposits. Due to the variety of business models, the large number of people involved, and the different uses of funds, the crime of illegally absorbing public deposits is complicated in practice. Therefore, the determination of the amount of crime by the public prosecutors and defense lawyers is often controversial. The author believes that the following aspects should be deducted and paid attention: 1. The amount of investment by family members or internal personnel of the unit shall be deducted. Funds invested in the name of the defendant's family members (wife, husband or minor children) should generally be deducted from the amount absorbed, as the aforementioned invested money is usually the common property of the family or the defendant invested in the name of family members. At the same time, if the defendant first absorbs funds from family members, relatives and friends, and internal personnel of the unit, and then absorbs funds from other unspecified objects, in view of the fact that the behavior of the actor in the previous stage of absorbing funds is still difficult to identify as social, the amount of absorption should generally be deducted. 2. The amount absorbed independently by the offline personnel shall be deducted. This situation is a specific distinction between the type of actor and the specific behavior, which requires a detailed analysis by the defender, such as the amount of illegal fund-raising carried out independently by the development of the offline personnel after the illegal fund-raising personnel leave the unit, should not be included in the amount of their absorption. 3. Determination of the amount of rolling investment The amount of illegal or disguised absorption of public deposits shall be calculated on the basis of the full amount of funds absorbed by the perpetrator. If the one-time investment funds are not withdrawn, and the principal and interest due are used to roll the investment, the amount of the crime shall be calculated according to the principal of the one-time investment. 4. On the determination of the amount of evidence Regarding the determination of the criminal amount of the crime of illegally absorbing public deposits, there are two main reference bases: one is the judicial accounting appraisal report; the other is the summary of the amount of the investor's report materials. There may be a gap between the amount of audit and the amount reported, and how to review and identify has become one of the focuses of debate. The first way-the summary of the amount of reported materials by investors, the most common problem is that there will be a large number of unreported persons, resulting in the statistical amount being far lower than the actual amount of crimes, or investors reporting cases one after another, resulting in procrastination in handling cases and long-term consumption of judicial resources; The second way-judicial accounting appraisal report, the biggest practical problem that may exist is that the legality of the appraisal report is questionable and cannot be used as a basis for the decision. In view of the disadvantages of the above two methods, lawyers should not only focus on reviewing the documentary evidence such as investor report records, verbal evidence and related contracts, bank account transaction records, fund receipt and payment vouchers, but also pay attention to the "three characteristics of evidence" in the judicial accounting appraisal report, and pay full attention to whether each evidence can form a complete chain of evidence to determine the amount of crime and eliminate reasonable doubts. The Argument of 4. Object The object of a crime is one of the essential elements of a crime and is a social relationship protected by criminal law and infringed by criminal acts. However, the object of crime is complex and abstract. Therefore, the object of the defense is the focus of criminal lawyers in the defense, but also the difficulty. It is generally believed that the criminal law provides for the crime of illegally absorbing public deposits to protect the national financial order. In the author's opinion, three issues need to be specifically clarified, namely, what is the financial order? What does the financial order specifically mean? Does the behavior involved in the case violate the financial order? If the behavior of the actor's borrowing is only controlled within a specific range, the circulation of funds does not infringe the credit monopoly of financial institutions, does not destroy the existing financial order, it is not the behavior of illegally absorbing public deposits denied by the criminal law, and the funds borrowed by the actor are not used for high-risk or high-yield behaviors such as stock investment and lending, but normal production and operation activities, it will not have serious consequences for the country's credit order. In this case, in order to strive for the point of defense, the defender should not only review the relevant evidence on file, but also pay attention to the investigation and collection of evidence on the source and whereabouts of the funds to prove the defense point of view.

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