Ceng Lv is by 2018 had offerred a point of view in individual column, 2018 is P2P domain explodes the heavy disaster area of thunder, and 2019 - 2020, heavy disaster area may be transferred to domain of illicit collect fund, and the accusation that be suspected of may be to collect money illegally not just, is divert capital and contract crime of fraud likely. The reason does not have him, the fluidity of whole market drops, who don't have to be able to avoid to be affected.
And go up in the press conference that the Ministry of Public Security held this year in May, also put forward domain of illicit collect fund to be suspected of collecting money illegally mainly the blow that waits for crime is on guard measure.
From public security the circumstance of mechanism control looks, the economic crime with outstanding domain of fund of current illicit collect has 4 kinds:
The first, orgnaization of partial illicit collect is being hit ' illicit collect fund ' cover, it is to be engaged in collecting money illegally actually activity.
The 2nd, individual illicit collect orgnaization breaks through the eligible investor bottom line with the mainest industry of illicit collect fund, take the kind of open conduct propaganda, be engaged in collecting money illegally guilty activity.
The 3rd, individual illicit collect orgnaization did not undertake according to contract agreement fund is run, project of dummy even investment perhaps operates establish empty shell company to divert embezzle fund assets and investor collect fund, executive contract bilk, divert capital or the crime such as functionary embezzlement.
The 4th, orgnaization of individual illicit collect and from personnel of course of study lawbreaking regulation, executive inside trades and operate the crime such as the market.
And these 4 kinds, from legal angle character, can divide roughly actually it is two kinds, namely the crime that collect endowment carries crime and capital to use end.
1. issues main body to did not obtain illicit collect fund to manage person competence, form certainly collect money illegally crime? Wrong
Be aimed at the crime that collect endowment carries, it is preamble place carry the a bitth and at 2 o'clock, be done not have individually namely and register the orgnaization that puts on record with the product without person of management of illicit collect fund, undertake fund raising illegally with the name of illicit collect activity, and what should emphasize here is, be not was not registered and put on record, regular meeting is formed collect money illegally crime (basically point to absorb the public illegally deposit blame and collect money crime of fraud) , because of the under certain circumstance, even if platform does not have any registering to put on record, also be administration closes compasses and the issue that illegal industry superintends a regulation merely, its can be suspected of collecting money illegally crime, still basically be the name with illicit collect, was aimed at unqualified investor to collect money, faced not specific public to have collect endowment action namely, return at the same time with multiform acceptance protect this payment of interest. In the final analysis, it is collect endowment behavior accords with 4 when admit public deposit guilt illegally necessary characteristics, namely " illegal sex (do not have lawful aptitude or permit) , open sex (with multiform open conduct propaganda, the form that includes according to legend of mouth of advertisement of use phone, network, mouth) , sociality (faced not specific public, the not specific target that faces random selection to perhaps may change at any time namely, identify money only namely, do not know a person) , sex of lure by promise of gain (acceptance protects this payment of interest) " .
Accordingly, the 2nd question that the Ministry of Public Security raises, namely " the eligible investor bottom line with the mainest industry of individual fund of collect of illicit of breakthrough of illicit collect orgnaization, take the kind of open conduct propaganda, be engaged in collecting money illegally guilty activity. " this kind is stated, just hit truly collect money illegally core characteristic of crime, that is to say, even if is the orgnaization of collect of the illicit that hold a card of the on record that register, want its to be in collect endowment behavior only the problem of compasses of existence above disagreement, apparently, this kind of behavior is belonged to disobey " fund of illicit collect investment controls government temporary measure " " behavior of collect of fund of illicit collect investment runs way " wait sectional regulations a moment or industry government regulation, but Ceng Lv early has said, the regulation of a lot of administrative regulations, the surface is for administration close compasses, the depth of backside is logistic, it is to prevent of all kinds crime, the mainest, collect money illegally namely kind of crime. For instance typical case is like (2017) 01 punishment of Shanghai eventually 1025, after the court is tried, think, although B company regards the management of illicit collect fund as the person,register fund of 3 illicit collect in association put on record, but association registers the information that put on record not to do materiality beforehand to examine to illicit collect, fair show information to also do not form pair of illicit collect fund to manage a person to invest administrative ability to reach a kind when close compasses case continuously to approbate.
Acceptance of fund of 2. illicit collect protects this payment of interest, is regular meeting formed collect money illegally crime? Wrong
Additional, those who need ambitious shift is, 4 when commit a crime about collecting money illegally basic characteristics (4 when admit public deposit guilt illegally namely basic characteristics) , must be to be had at the same time, if cannot be had at the same time, also cannot form collect money illegally crime, for instance fund of many illicit collect sells end to become thin volume to rise, can counter-purchase an agreement through what sign with investor, associated square or tripartite assures wait means a moment to protect this payment of interest to investor acceptance, and keeping this commitment is to disobey illicit collect fund directly relevant provision (include endowment canal new rule) the key violates compasses act, but if endowment end did not face this fund collect,not specific public collects money, perhaps did not face a society to publish conduct propaganda, also cannot form collect money illegally crime, its are process of put on sale violates compasses problem mediumly only merely, the administration that will be superintended a branch or trade punishment.
3. uses the illicit collect fund that capital pool runs, collect money illegally namely certainly crime? Wrong
Manage together, fund of collect of a lot of illicit the fluidity to maintain operation, can violate compasses use capital pool means to run, but, what differ significantly with P2P is, illicit collect uses capital pool to run, won't be suspected of collecting money illegally directly problem. Because,this is, p2P is to serve as open Internet platform to undertake conduct propaganda, what itself is aimed at is not specific target collect money, its majority is offerred natural commitment protects the civil and leasehold relation of this payment of interest to perhaps tear apart sale all sorts of fixed income kind product, accordingly, the key of P2P and the bounds that collect money illegally is nodded, it is platform cannot contact capital, platform cannot regard be in harmony as those representing capital or creditor's rights puts in collect 's charge, tear apart square, once pool of P2P occurrence capital is run, collect money illegally with respect to can direct lay a finger on guilty red line, and if illicit collect can ensure collect endowment carries behavior not to face the public, collect money in the light of eligible investor only, criterion its used even if capital pool is run, also cannot form collect money illegally crime, the problem that be suspected of, the likelihood is to run close compasses sex issue, for instance information exposure, capital is used etc, its are qualitative and likely it is civil perhaps break a contact waits divert capital a moment.
4. wants to invest in the light of eligible investor only, collect money with respect to scarcely dispute law? Put in controversy
About the regulation of investor, issue of the first eligible investor, the 2nd, it is number issue.
Above all, it is endowment canal new rule no matter, or " fund of illicit collect investment controls government temporary measure " , gold of relevant perhaps place makes the provision of place, have the level that differs severally, but the goal that its set, considering from wind space angle is to be on guard financial venture, and consideration of angle of law of accessory punishment job, basically prevent to be aimed at not specific target to collect money namely. It is with illicit collect fund exemple, " fund of illicit collect investment controls government temporary measure " the standard of eligible to the individual investor is to point to have corresponding risk to identify ability zephyr danger to assume ability, invest in is odd the amount of an illicit collect fund not under 1 million yuan and the orgnaization that accords with following relative standard and individual: (one) net assets not the orgnaization under 10 million yuan; (2) financial capital not under 3 million yuan the closest perhaps 3 years individual year all income not the individual under 500 thousand yuan.
Accordingly, to illicit collect fund, police can check investor to whether accord with the standard of relevant and eligible investor above all, for instance the invests contract, investor attestation with meeting many collect perhaps states police, the accountant items of an account of the company is waited a moment, whether to existence is broken through or covert certainly the problem that breaks through eligible investor standard. For instance foundation of certain illicit collect is used multilayer the mode of nest, the relevant profit of eligible investor authority has be tearinged apart small, in P2P platform of other perhaps economy has sale 2 times, this kind of mode is suspected of possibly collecting money illegally problem, but the in-house mode that has involved company products plan as a result of this kind of behavior that tear apart, platform of illicit collect foundation is other unwitting is common avoid possibly to assume relevant criminal responsibility from personnel of course of study.
Next, to issue of number of investor of illicit collect fund, current regulation is odd the investor number accumulative total of an illicit collect fund must not exceed " company method " , " partnership law of enterprises " , " law of fund of negotiable securities investment " the specific amount that waits for legal provision. For instance company fund: Limited company does not exceed 50 people, joint-stock company does not exceed 200 people, partnership fund: Do not exceed 50 people, fiducial (contracted) model fund: Do not exceed 200 people. But in practice, can appear more complex case, for instance platform can establish business of much home partnership to draw fund, from apparently the number that sees each partnership companies did not break through limited partnership to make fund partner the number limitation of 50 people, but total number already exceeded number upper limit far, this kind of circumstance, whether to form collect money illegally crime, the author thinks to should inspect a condition and be decided. Because do it delimit of illicit collect fund is so eligible investor standard, collect money to prevent to face the public namely, and the limitation to the number, it is administration adds up to rule requirement merely, the number summation of many fund exceeded even if 50 people or the limitation of 200 people, but, platform of illicit collect foundation still undertook to individual investor eligible investor is checked, that is to say, its are not to be aimed at not specific target to collect money, its still were to face specific target to collect money, just the number exceeded " company method " " partnership law of enterprises " " law of fund of negotiable securities investment " formulary number, this kind of circumstance, its investor boy or girl friend still is specific, namely its collect money the object is relatively fixed, close, the not specific target that is not random selection to perhaps may change at any time, " company method " " partnership law of enterprises " the regulation that waits to be counted to partner, contributive everybody cannot serve as directly " criminal law " suck illegally of the regulation put, collect money the number of crime of fraud maintains a level, although criminal law compasses sucks those who put a blame illegally to collect money surely,the object is more than 30 people can with put on record, but the 30 people here, it is to point to not specific target, namely unqualified investor. With folk leasehold kind collect money illegally case for exemple, if collect money person the loan of relatives and friends to oneself, did not use be publicized publicly or the means such as buccal mouth according to legend, even if its to loan of 100 relatives and friends, the number exceeds 30 people far, also cannot maintain commit a crime to collect money illegally, the reason is its loan object, it is the specific target that accords with a regulation.
Fund of 5. illicit collect manages a person to did not use fund by the agreement, whether to make divert capital crime certainly?
In the key risk clew that announces this in public security mechanism, its are in the key was mentioned at 3 o'clock " orgnaization of individual illicit collect did not undertake according to contract agreement fund is run, project of dummy even investment perhaps operates establish empty shell company to divert embezzle fund assets and investor collect fund, executive contract bilk, divert capital or the crime such as functionary embezzlement. " to this problem, the key needs to make an on-the-spot investigation, see illicit collect orgnaization namely to investor fund decision-making, use the decision making authority that whether has complete, independence. If have, its are opposite even if capital by divert behavior, very difficult also definition is divert capital blame, if do not have, may be suspected of this blame is functionary embezzlement blame even. And if be suspected of false project perhaps operating,establish assets of fund of move of empty shell company, embezzle, the crime that is suspected of may be contract crime of fraud.
