Beijing criminal lawyer: In the case of illegally absorbing public deposits, ordinary salesmen should be liable for restitution? In the crime of illegally absorbing public deposits, there are usually the following modes to determine the subject of restitution: the first is to determine the subject of restitution according to the illegal income, and the second is to determine the subject of restitution according to the fund-raising funds involved in the absorption. In judicial practice, both ways exist, but the former is the majority.
1. Determine the subject responsible for restitution according to the illegal gains. According to Article 64 of the Criminal Law, all the property illegally obtained by criminals shall be recovered or ordered to make restitution. According to this regulation, it is completely no problem to determine the subject of restitution according to the illegal income. In this case, the principal offenders, such as shareholders, senior managers or actual controllers, will become the main body responsible for the refund of the raised funds. Ordinary salesmen and people who have not actually obtained the corresponding fund-raising funds should not be jointly and severally liable for the refund of the fund-raising, that is, they do not have to bear the responsibility for the refund of the fund-raising funds they participated in, but only within the scope of the commission they obtained. In my opinion, this kind of verdict is most in line with the provisions of Article 64 of the Criminal Law and fully embodies the principle of a legally prescribed punishment for a specified crime. What is illegal income? Generally speaking, illegal income includes any property directly or indirectly generated or obtained by committing crimes, including property that has been partially or completely transformed into other forms. At the same time, it includes the income from the transformation of illegal income, the property after transformation, or the income from the corresponding part of illegal income in the property that has been mixed with illegal income. It is a common judicial way to determine the subject of compensation liability according to the mode of illegal income. In judicial practice, the case-handling organ will recover or demand compensation, including commissions, commissions and other expenses of ordinary salesmen; Advertising expenses of advertisers, endorsement expenses of spokespersons and agency fees, benefits and rebate fees of middlemen, etc. At the same time, in the case that the above-mentioned refund can not meet the return of the fund-raising, shareholders, senior managers or actual controllers shall bear joint and several liability for the return of the fund-raising.
second, determine the subject responsible for reimbursement according to the fund-raising funds incurred in participating in fund-raising activities. This mode is different from the first mode. In this mode, the participating subjects bear the corresponding liability for reimbursement according to the fund-raising funds absorbed by their respective participation in fund-raising activities. For example, for example, a sales team * * * raised RMB 11 million, in which the head of the team should bear the responsibility of restitution for all the funds raised, while the salesman of the team should bear the joint responsibility of restitution according to the funds raised in the fund-raising activities. Under this mode, the salesman has naturally become the main body responsible for the refund of the principal of the fund-raising. In judicial practice, there are differences on whether ordinary salesmen should be the joint and several liability subjects for the principal of fund-raising. The author believes that it is debatable to identify ordinary salesmen as the subject of joint and several liability for restitution. In essence, this model does not fully apply the principle of legally prescribed punishment for a crime and punishing it as a crime. As we all know, in the crime of illegally absorbing public deposits, ordinary salesmen or middle-level managers will not directly contact the funds at all, let alone illegally occupy the fund-raising funds. The corresponding fund-raising funds will eventually be illegally occupied, used and disposed by the corresponding shareholders, senior executives and actual controllers, and such people are the ultimate beneficiaries. Therefore, from this point of view, according to this model, it is inevitable that ordinary business personnel will be identified as the subject of restitution responsibility, and they will be punished. We have also made similar statements in other places. As an ordinary salesman in non-smoking cases, he has no major malice subjectively, and even has been deceived and used in many cases. Objectively speaking, ordinary salesmen only carry out sales work according to the arrangement of the unit or the leader for the purpose of finding a job and making a living. In essence, this behavior of ordinary salesmen is not much different from normal sales work. At the same time, for ordinary salesmen, they have not obtained the fund-raising funds. If the adjudicative salesman assumes the responsibility of restitution for the fund-raising funds that may involve millions or tens of millions, it will definitely destroy a person or a family. We believe that according to the basic principle of punishing him as a crime, it cannot be handled in this way.