This researchwill discuss the following contents in five chapters: The first chapterintroduces the development process of private financing in China and the change of the government\'s attitude towards private financing, so asto explain: 1. As one of the definite resultsof the financial duality, the demand for private financing actually exists and shows a sharp upward trend, but the current normal borrowing and lending path cannot meet this growing demand. 2. The government has been keeping strict control policy onprivate financing, but the demand for economic development has forced this attitude to sway continuouslyfrom one side to another. 3. Difficulties in fund-raisingand the risk of fund-raisingbehavior (including both borrowing and lending) being hit ascrimes have abnormally pushed up interestratestoo high while high interest rate is also could be punished as crimes. 4. The problem of fraud in the expansion of private financing under thecurrentpoliciesis becoming more and more serious, and it has been evolvingin depth with the development of new technology and finance. The second chapteranalyzes the criminal composition (elements which should be established) and legislative as well asjudicial definitions for the two highly cohesive main accusations as to \"illegal\" fund-raising, i.e.illegally absorbing public deposits and fund-raising fraud, and analyzes the causes and reason for existence of their mixed state—to jointly maintain a financial control policy. And as to this mixed state:1. Itmakes the possible charges and accusations expand too far andhit alargescope of activities, thereby threatening normal business;2. Sometimes it will force normal business activities to turn intoreal criminal behaviors;3. And it will encouragereal fraudulent operationsto take advantage of themixed stateto choose fraud by financing, which has become a \"safe haven\" for fraud activitiesbecause many of them have possibilities ( of which will be showed further in Chapterfour) only being found guilty for illegalabsorbing public deposits for which the penalty is lighter than that for any other crimes of frauds. The thirdchapteranalyzes the only difference between illegally absorbing public deposits and fund-raising fraud--the purpose of \"illegal possession\"at the same time of illustratingthe existing vague judicial practice further blurring the boundary between these two crimes. The fourth chaptershows the trend of illegal fund-raising cases (including cases of illegally absorbing public deposits and fund-raising fraud) in China through data analysis. This partcan see the risks of private financing andthescale of criminal evolutionand analyzesthe attitudes and trend of judicial judgments. The conclusion for the evaluation of the data is that the convictionof illegally absorbing public deposits is a policy-oriented choice. But if boththe charges of illegally absorbing public deposits and fund-raising fraudhave the function of maintaining the currentfinancial control policyand the boundary between them can be easily ignored, why is there such a trend? The fifth chapteranalyzes the reasons and influencing factors of the above conviction trends in details, such as the determination of the investor\'s legal status, the definition of accomplicesin these two convictions, the impact of the investor\'s status on the determination of the amount of funds raised, and the impact of the difficulty forthe return of funds raised on the conviction attitude.By the analysis, it is clear that the accusation of illegally absorbing public deposits, compared with the accusation of fund-raising fraud, has some distinctive functions such as easing the anger from investors, decreasing the claims for recovery and safeguarding the judicial as well as social stabilities.
【作者简介】
HAN, Yang (韩阳), Professor of law, Beijing International Studies University(北京第二外国语学院). Senior research fellow of Beijing Research Institute for International Service Trade and Cultural Trade (首都国际服务贸易与文化贸易研究基地). Council member of China Criminal Procedure Law Research Association. Ph.D in criminal procedure and justice, China University of Political Science and Law. Post-doctoral researcher at Chinese Academy of Social Sciences (2007-2010).Visiting scholar, Université Montesquieu - Bordeaux IV (2007); visiting scholar, school of law, University of Oregon (2017-2018). Titled with Beijing Youth Top Talent (2013-2015).
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