If the state has no strict system and management order for absorbing public deposits, the management order of social deposits and loans will be chaotic. Therefore, the substantive criterion for determining a crime should be whether it has destroyed the financial management order in China. If we ignore the requirements of the target and blindly increase other incriminating standards, it will inappropriately expand the criminal circle and crack down on normal financing activities.
Some people think that the criteria for determining the crime of illegally absorbing public deposits can be divided into two situations: one is fraud. The essence of illegal fund-raising is fraud, which is an important factor that causes information asymmetry between investors and fund-raisers, and then easily puts investors at a disadvantage. If there is no fraud such as false propaganda, the investor decides whether to contribute or not because it has the judgment ability of normal people, which belongs to autonomy of will in the civil sense.
The second is to absorb funds with high returns exceeding the proportion of corporate profits. The profit rate of the enterprise is lower than the agreed rate of return on absorbing funds, which means that this way of absorbing funds obviously threatens the safety of people's funds, violates commercial laws, and also makes fund-raisers in fund-raising activities? Volcano? Let's go Therefore, what about the deliberate concealment of corporate profits? Serial fundraising? The act of maintaining the operation of an enterprise in some way should be recognized as the crime of illegally absorbing public deposits. The contradiction of this view lies in: firstly, fraud and high risk are related to financial security, but the protection of investors' interests cannot replace the concern for financial security.
According to the above logic, as long as the actor falsely publicizes investors or conceals the actual profit rate of the enterprise to absorb funds, so that the safety of investors' funds is in a threatened state, then whether the behavior endangers the financial management order of China or causes investors to suffer heavy property losses constitutes a crime.