2. The public means that investors are people or units that have nothing to do with the absorber.
3. Therefore, absorbing deposits from relatives and friends or raising funds within the scope does not belong to illegally absorbing public deposits. Because the investor and the absorber are related people or units.
4. If you raise funds among relatives, friends, fellow villagers and acquaintances, even if you agree to repay the principal and interest, it can generally be regarded as private lending.
The characteristic of private lending is "recognize people first, then recognize money", and don't borrow money you don't know. Illegal absorption of public deposits is just the opposite of fund-raising fraud. First, recognize money, then recognize people, or even deny people.
6. A typical innocent case is that in the case of Zhang Yong and Zhou Xianshan illegally absorbing public deposits, the Jiangsu Provincial High Court found through retrial that the defendant raised funds from different relatives, factory workers and villagers at high interest in the name of individuals or factories, and his behavior did not belong to "absorbing funds from unspecified objects in society" and did not meet the constitutive requirements of "unspecified objects" illegally absorbing public deposits, so he should not be investigated for the crime of illegally absorbing public deposits. Declare the defendant innocent.
7. The most important key to innocence in this case is "separation". The defendant borrowed one-on-one, rather than publicly releasing the loan demand or word of mouth. The word "respectively" proves the personal relationship between the defendant and the borrower to a great extent. Lending is mutual assistance of funds, not the sale of funds, which is the so-called "recognize people first, then recognize money".
8. Are there any cases of innocence? and ...
9. More significant cases of innocence include Lin Jinbei's illegal absorption of public deposits in Fujian and Wu Bing's illegal absorption of public deposits in Shanghai. In these two innocent cases, the defendant's propaganda means was to borrow money from the borrower through face-to-face communication and one-to-one telephone communication. Both the defendant and the borrower have certain social relations, such as friends and fellow villagers. The scope is relatively fixed, closed and closed. Both sides often have private loans such as IOUs and guarantee contracts.
10. This kind of loan will be innocent if the fundraiser can't afford it?
1 1. Yes. In these two cases, even if the defendant failed to repay part of the loan due to poor management, which caused obvious social harm, he was still acquitted.
12. There are also many innocent cases of private lending and mutual assistance being accused of illegal fund-raising, and no prosecution will be initiated without going to court.
13. The legal basis is, for example, the Interpretation of the Supreme Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund-raising.
14. However, it does not affect the establishment of this crime if the public who occasionally contribute funds include relatives and friends.
15. The typical non-smoking is to recognize money first and then recognize people.
For example, the case of Zhang Moumou illegally absorbing public deposits in Longyan City, Fujian Province, and the case of Shen Moumou illegally absorbing public deposits in Luoyang Intermediate People's Court, Henan Province, etc., the defendants did not borrow money one-on-one, but sent a message that they needed to borrow money among villagers, relatives and friends, which was equivalent to posting a notice of borrowing money at the city gate in ancient times, and then letting villagers, relatives and friends spread the financing needs through word of mouth.
16. This behavior broke through the defendant's interpersonal circle. The reason for borrowing money is no longer mutual help between relatives and friends, but pure capital operation and transaction. If it reaches a certain amount, even if it is used for production and operation, it will cause certain damage to the financial order of the country. So it may constitute a crime.
The object of this crime must be the deposit of an unspecified person. This is one of the four necessary conditions for this crime. Absorbing deposits from specific objects does not constitute this crime. According to the relevant judicial interpretation of this crime, raising funds from relatives, friends, fellow villagers and other acquaintances or internal personnel of the unit is not regarded as an unspecified object in principle and is not treated as a crime. Other objects will be considered as "unspecified objects" in principle and will be investigated for criminal responsibility as crimes. For example:
The case of Xuemou in Jiangsu, which I undertook, was acquitted on suspicion of non-smoking of 65.438+80 million yuan. Xue is a senior manager of an insurance company. He has a large number of high-quality customers. After resigning, he called these customers separately to raise hundreds of millions of yuan from everyone in the form of promoting a project. Later, because he could not fulfill his promise, he was arrested in the name of not absorbing. After understanding the case, the lawyer believes that Xue does not absorb funds from unspecified people, but from his regular customers, which does not constitute a crime of not absorbing. This view was adopted by the procuratorate, and no arrest was allowed, and he was acquitted.
However, if you know that the funds of relatives, friends and people inside the unit are absorbed by unspecified people in society, you may still be investigated for criminal responsibility for not absorbing or even fund-raising fraud! For example, Zhejiang Wuying fund-raising fraud case. On the surface, the funds directly raised by Wu Ying belong to several acquaintances or friends (see Baidu for details), but he knows that these people's funds come from the public, so he is still punished as a fund-raising crime.
Therefore, whether the object of absorbing funds belongs to the social unspecified object depends on the situation and cannot be understood mechanically, so as not to attract jail!
About unspecified objects.
In the Interpretation of Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising, it is determined that publicity to the public is through "media, promotion meetings, leaflets, mobile phone messages, etc." Of course, the channels here are not limited to the internet, lectures, forums and so on. Of course, it does not mean that the social characteristics of illegal fund-raising can be satisfied by disclosing fund-raising information through the above channels. The key depends on whether the way the audience accepts the fund-raising information is open or secret.
In addition, it is necessary to clarify the subjective mentality of the lender, that is, the actor intentionally spreads the information of absorbing funds to the public through various channels, or knowingly lets it spread to the public.
If the audience accepts the fund-raising information in an open way and the lender subjectively intends to publicize it to the society, it can be concluded that the lender has implemented the act of publicizing it to the society. The audience corresponding to this behavior is an unspecified object.
It is clear in the Interpretation that it is a crime for an individual to illegally absorb public deposits with more than 30 unspecified objects and raise 200,000 yuan.
About a specific object.
If the laws and regulations stipulate the quantity limit of unspecified objects, is there no quantity limit for specific objects as long as they are specific?
That's not true.
Miao Youshui, vice president of the Second Criminal Court of the Supreme Court, made it clear that although there is no clear stipulation in the current laws and regulations, the identification of "specific objects" should be linked to the size and number of borrowers, and whether they belong to specific objects, and there is a process from quantitative change to qualitative change. You can't just be restricted by conditions, regardless of the actual number of people.
On this issue, in theory, we can refer to the provisions on the crime of issuing stocks, companies and corporate bonds without authorization in the Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising issued by the Supreme People's Court: "Whoever issues stocks or corporate and corporate bonds in disguised form to unspecified social objects, or issues stocks or corporate and corporate bonds in disguised form to specific objects, or has more than 200 people in total, shall be deemed as Article 179 of the Criminal Law. If the case constitutes a crime, it shall be convicted and punished for the crime of issuing stocks, companies and corporate bonds without authorization. In this article, "distribution to unspecified social objects" and "distribution to specific objects with a total of more than 200 people" constitute crimes. In other words, 200 people are stipulated by law, that is, the cumulative number of specific objects exceeds 200, which is equivalent to unspecified objects. This provision can also be applied to the crime of illegally absorbing public deposits.
How to define "unspecified object" needs to understand and correspond to the "public" in the crime of illegally absorbing public deposits. Generally speaking, the crime of illegally absorbing public deposits means illegally absorbing deposits and disrupting the order of financial management.
In order to avoid treating the general lending behavior as a crime, the relevant judicial interpretation stipulates that the lending behavior between specific groups such as relatives and friends is not publicized, as long as it is not illegal, such as frequent lending and excessive interest rates, it is not considered as this crime.
In addition, it is necessary to understand why the criminal law limits this crime to unspecified objects because illegal storage itself pursues the universality of public participation. Therefore, judicial interpretation also takes "public propaganda" and "word of mouth" as means to attract unspecified personnel to participate, and as an important factor to evaluate whether it constitutes a crime.
In short, publicity, commitment, and a certain amount of deposits for unspecified people (200,000 people) are enough to file a case and may be investigated for criminal responsibility.
People other than relatives and friends belong to unspecified objects.
Get to know each other in advance
The answer is yes, the object of the crime of illegally absorbing public deposits must be an unspecified group.
The four elements of the crime of illegally absorbing public deposits include illegality, openness, seduction and sociality. Illegal and inducements are easy to understand, so I won't go into details here. The key is openness and sociality.
Publicity is publicity, and there are many ways and means, such as audio and video broadcasting, TV advertisements, street banners, leaflets on sidewalks, promotion meetings, WeChat group communication, and word of mouth.
Sociality means that the object of absorption and storage must be unspecified people, and who "invests" is uncertain and random.
If the deposit object is only relatives and friends or internal personnel of the unit, and the deposit object is specific, it does not constitute the crime of illegally absorbing public deposits.
However, even if it is absorbed from relatives and friends, in any of the following circumstances, this part of the amount should still be included in the crime amount:
First, in the process of absorbing and storing from relatives and friends or internal personnel of the unit, knowing that relatives and friends and internal personnel of the unit are absorbing and storing from other personnel of the society, they are allowed to develop.
Second, for the purpose of absorbing funds, absorb social personnel into the unit to become employees, and then absorb employee funds in disguise.
Three, publicity to the public, while absorbing funds from unspecified objects, relatives and friends, and internal personnel of the unit.
Therefore, it does not necessarily constitute the crime of illegally absorbing public deposits from relatives and friends or internal personnel of the unit. Under certain conditions, matter has broken through the boundary of a fixed range and should belong to an unspecified group. This part of the absorbed funds should still be included in the amount of illegally absorbed public deposits.
No specific object takes money for profit, no matter whose money it is. The emperor dares to collect money to buy horses!
In fact, this unspecified object is a subjective judgment. For example, Zhang San and the fund-raiser live in the same village, but Zhang San's son works in the provincial capital, so Zhang San's fund-raising is ambiguous. It is entirely Zhang San's own or the money belongs to Zhang San's son, but it is not a big problem to raise funds in Zhang San's name. If Zhang San's son knows that the fund-raising project exists through other channels and participates in fund-raising, this person does not belong to a specific object.
As for illegally absorbing public deposits, leaving early can reduce the guilt, and it will be better to give priority to returning the quotas of these unspecified objects (a few). If the number of people is too large, it will generally be defined as illegally absorbing public deposits, and one will always be found unqualified.
"Fund-raising" is defined as private investment, state-controlled investment and personal investment for a certain purpose. All the funds were raised with the clear purpose of the project party. Its total amount is called fund-raising. Peer-to-peer contract payment of mutual fund intermediary platform can not be defined as fund-raising, but only as contract transaction payment between borrowers and borrowers.
The definition of "participant" means that the unit and individual investors of a project share the dividend in proportion to their investment. Become a project participant. Because enjoy the benefits of equity. A lender cannot be defined as a participant. But consumers of wealth management products (ten interest rates).
Therefore, tracing back to the source, the criminal suspect and the lender who suddenly turned into the original crime for the first time are classified into one category (that is, the offender and the victim). It confuses the causal relationship between who is attacked and who is protected, and how to implement the purpose of civil law, that is, how to effectively protect people's legitimate property from infringement. This will inevitably become a question for us to ponder.