Translated Abstract
In recent years, the situation of financial crime in China has become increasingly serious. The number of crime of illegal absorbing public deposits increases sharply and the amount of money involved is increasing. The situation that criminals spend and transfer the money or siphon money out of the country often occurs, which has caused severe harm to the country and society. At the same time, because of the late establishment of the crime of illegal absorbing public deposits in Chinese Criminal Law, there are still many controversies on the constitutive requirements and judicial cognizance of this crime. So how to correctly distinguish the illegal deposits from the public and legal private financing has become a difficult point. This paper aims to analyze the theoretical controversy in the constituent elements of the crime of illegal absorbing public deposits and find out the key elements that constitute this crime. And combine with the analysis of the four main modes of private financing (private lending, commissioned financial management, P2P network loan, crowd- funding), in order to solve the problem that the crime of illegal absorbing public deposits is difficult to identify in the current judicial practice.
This paper starts from the concept of understanding the crime of illegal absorbing public deposits, clarifies the meaning of ＂illegal＂, ＂public deposit＂ and ＂disrupting financial order＂ in the Criminal Law, establishes the sample to reveal the current situation of illegal absorbing public deposits and summarizes the three basic patterns of such cases. Secondly, it analyzes the content of the object, the objective aspect, the subject and the subjective aspect of the crime. The analysis results of this paper: the object of the crime of illegal absorbing public deposits includes not only the financial management order but also the property rights of the depositor; the objective aspect should have the four elements of ＂illegality＂ and ＂openness＂, ＂inducement＂ and ＂sociality＂; the subject should consider the judicial staff and the financial workers as the aggravating circumstances; the subjective aspect includes not only intent but also negligence. Finally, the above analysis results are applied to distinguish the crime of illegal absorbing public deposits and the other kinds of private financing activities, and according to the elements of different financing models, this paper compares the elements of the crime of illegal absorbing public deposits to make a identification of crime and noncrime. Through the combing of the theory and practice of the crime of illegal absorbing public deposits, it provides some help for the judicatory practice in determining the behavior of illegal absorbing public deposits.
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