(I) Object Characteristics The object of this crime is the state's management order of stock issuance and corporate and enterprise bond issuance. The object of this crime is stocks and bonds, in which stock issuance includes both initial issuance and capital increase issuance. Bond issuance includes both corporate bonds and corporate bonds. The so-called stock is a certificate issued by a joint stock limited company to prove the shares held by shareholders. The capital of a joint stock limited company is divided into several shares, each of which takes the form of shares, and each share has the same amount, the same rights and interests. The so-called corporate bonds refer to the securities issued by the company in accordance with legal procedures and agreed to repay the principal and interest within a certain period of time. According to the Company Law, joint stock limited companies, wholly state-owned companies and limited liability companies established by two or more state-owned enterprises or other two or more state-owned investors may issue corporate bonds in order to raise funds for production and operation. (II) Objective Characteristics The objective aspect of this crime is the act of issuing stocks or bonds of companies or enterprises without the approval of the relevant competent departments of the state, which is huge in amount and has serious consequences or other serious circumstances. "Relevant national competent department" refers to the securities regulatory authority of the State Council or the department authorized by the State Council as stipulated in Article 10 of the Securities Law. "Unapproved" means that it has not been submitted to the relevant departments for approval or has been submitted for approval, but it has not been approved after the application, or the approval has been revoked, or it has been issued beyond the time limit after approval. "Huge amount" means that the amount of crime reaches a certain standard, and only refers to the amount that the perpetrator publicly issues to the society without authorization; "Serious consequences or other serious circumstances" refers to the situation that the actor can't pay off or repay in time, causing serious economic losses for investors to buy stocks or corporate bonds or causing dissatisfaction among many investors, even affecting social stability and causing adverse effects. The specific amount standard will be explained in detail later. (III) Subjective characteristics The subjective aspect of this crime is intentional. At the same time, according to the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising, anyone who knowingly issues stocks and bonds fraudulently, illegally absorbs public deposits, issues stocks and bonds without authorization, commits fund-raising fraud or organizes and leads pyramid schemes and other fund-raising criminal activities, and provides advertisements and other publicity for them, shall be punished as the * * * offender of related crimes. (IV) Characteristics of the Subject This crime refers to the subject in a general sense, that is, both natural persons and units can become the subject of this crime. Both units and individuals must obtain the consent of the relevant state organs before issuing bonds. After being approved to issue bonds, before issuing bonds, it is necessary to judge whether the bonds are forged. If these regulations are violated, there will undoubtedly be civil disputes after the issuance of bonds.
Legal objectivity:
Object Elements The object of this crime is the state's securities issuance management order and the legitimate property rights and interests of the public and legal persons. According to the Company Law of People's Republic of China (PRC), anyone without company qualification has no right to issue stocks and corporate and corporate bonds. Secondly, even if companies and enterprises want to issue stocks and bonds, they must be approved by the securities management department of the State Council. Based on this, anyone who (1) issues stocks, companies and corporate bonds without the approval of the relevant state authorities obviously infringes on the order of China's securities management and the legitimate property rights and interests of subscribers (including legal persons), and the circumstances are serious enough to constitute this crime. The objects of this crime are stocks and corporate bonds. The so-called stock refers to the certificate issued by the company to prove that shareholders hold shares; The so-called bond refers to the securities issued by a company or enterprise in accordance with legal procedures and agreed to repay the principal and interest within a certain period of time. The direct object of this crime is the subscribers of securities, including legal persons, unincorporated units and natural persons; The objects of indirect harm include other specific or unspecified (potential) economic entities that compete with this crime in the tide of market competition. The subject of this crime is the general subject. Including natural persons and units. The so-called unit refers to other legally established "units" established through industrial and commercial registration procedures, including legal persons and unincorporated units, which can establish the subject of this crime. There is no restriction on the subject identity of this crime in criminal law, but there are differences on the subject qualification of this crime in theory. There are three viewpoints: qualified theory, unqualified theory and unlimited theory. First of all, it is considered that only limited liability companies and joint stock limited companies qualified to issue stocks and corporate bonds can establish the subject of this crime. On the contrary, the second theory holds that it is generally a unit that does not have the qualification to issue securities to establish the subject of this crime; The third theory holds that the subject of this crime has no other qualifications, as long as it is a unit. Of these three opinions, we agree with the third. The reasons are as follows: (1) From the perspective of laws and regulations, in general, but with specific identity requirements, the criminal law clearly stipulates special subject clauses-such as the crime of falsely reporting registered capital, the crime of providing false financial reports, and the crime of illegally liquidating company property. , respectively, in the special section of the new criminal law on corporate crime; In addition, the crime of false issuance of stocks and bonds stipulated in the new criminal law, although the provisions themselves do not restrict the subject of the crime, can only be implemented after the actor obtains the approval of the securities management department of the State Council (making a prospectus, subscription book or corporate bond offering method), so the subject of the crime is actually a specific identity crime. However, the charges mentioned in this article of the new criminal law do not limit the subject of this crime, so the subject of this crime should not be an identity crime. (2) From the practical needs, in the actual economic practice, there are not only real companies that issue company stocks and bonds without approval, but also a considerable number of fake companies and fake enterprises that issue company stocks and bonds without approval, and their harmful consequences are often more serious and their influence is even worse. If the circumstances are serious, they have to be punished. (3) The qualification holder believes that if the unqualified person issues stocks and bonds without authorization and the circumstances are serious, it can be punished as fraud. We think this statement is inappropriate, because in the case of issuing stocks and bonds without authorization, whether it is qualified or not, the act of issuing fake stocks and bonds is different from the crime of fraud subjectively and intentionally, although it deceives the public, which will be discussed below. In addition, from the object of the crime, this crime violates other specific legal orders other than public and private property-the state's management order of company securities issuance, so its direct object is not just public and private property rights, but a dual object. Therefore, it may not be appropriate to deal with it according to the general crime of fraud, and it is even more unnecessary to make it a special crime in the new criminal law. It should not be dealt with as fraud, but should be regarded as this crime. This is not only in line with the legislative provisions, but also convenient for judicial determination, and is also conducive to focusing on cracking down on crimes that undermine financial order. In the objective aspect of the crime, the actor must have committed one of the following acts and achieved legal consequences: First, issuing stocks without the approval of the relevant state organs. Without approval, this includes two situations: failure to report to the above-mentioned statutory bodies for approval and failure to report to them. According to the relevant provisions of the Company Law, shares can only be issued in China by the promoters of a joint stock limited company or the joint stock company itself. When the company has not been formally established, the promoters shall issue shares. Among them, if a joint stock limited company is established by offering, the shares subscribed by the promoters shall not be less than 35% of the total shares of the company, and the remaining shares shall be approved by the securities management department of the State Council before public offering. Secondly, if a joint stock limited company wants to issue new shares after its establishment, it must be resolved by the shareholders' meeting and reported to the the State Council securities management department for approval. Based on this, the so-called unauthorized issuance of shares here includes: (1) the promoters of a joint stock limited company issue shares without the approval of the the State Council securities administration; (2) The board of directors of a joint stock limited company issues shares without the approval of the the State Council securities regulatory authority; (3) Other units or individuals issue shares without the approval of the securities administration department of the State Council. . Second, issuing corporate and enterprise bonds without the approval of the relevant state authorities. According to the provisions of the Company Law, only (1) joint-stock companies are eligible to issue corporate bonds; (2) A wholly state-owned company. (3) A limited liability company invested and established by two or more state-owned enterprises; (4) A limited liability company established by two or more other state-owned investors. To issue corporate bonds, such companies must first make a plan by the board of directors, and then make a resolution at the shareholders' meeting (the wholly state-owned company shall be decided by the state-authorized investment institution or the state-authorized department), which can only be issued after being approved by the securities management department of the State Council. Therefore, the so-called unauthorized issuance of corporate bonds includes the above-mentioned joint stock limited companies, wholly state-owned companies and other state-owned limited liability companies that issue corporate bonds without the approval of the the State Council securities management department; It also includes the issuance of corporate bonds by other units or individuals without the approval of the securities management department of the State Council. In addition to the above acts, the new criminal law also requires that it must be "an act with huge amount, serious consequences or other serious circumstances" to establish this crime. That is to say, in addition to any one or two of the above acts, the actor must also: either the amount is huge or the consequences are serious; Or although the amount of issuance is not huge enough and the consequences are not serious enough, there are "other" serious circumstances before this crime can be established. The definition of "huge amount", "serious consequences" or "other serious circumstances" needs to be clarified by the relevant judicial interpretation of the highest judicial organ. Subjective Elements The subjective form of this crime is intentional. It should be emphasized that although in this crime, the actor's intention is often manifested as the intention of the behavior (issuing without authorization), the intention in criminal law is mainly aimed at the harmful result, not at the behavior itself (in fact, in the case of negligent crime, the actor is often intentional in terms of its "behavior" itself), so in terms of subjective illegality, the actor of this crime should not only know that he needs to issue stocks and corporate bonds, but also. A person who negligently commits such an act cannot be convicted of such a crime. For example, in the process of pending approval, a person who rashly refuses to approve the issuance of stocks and corporate bonds because he subjectively thinks that the first step will not harm society at all cannot constitute this crime, because he does not have "intention" in the sense of criminal law. If the circumstances are serious, it may be determined as other crimes of dereliction of duty or given relevant administrative sanctions according to the consequences of its actions and the seriousness of the circumstances.