Run rampant leaseholdly to be mixed with the disorder of Internet finance in the light of folk without foreword, procuratorate of top people court, top people, the Ministry of Public Security allotted jointly a few days ago " collect money illegally about dealing with statute of criminal case comfortable use the opinion of a certain number of problems " (next weighing " opinion " ) .
" opinion " point out clearly, the fund that draws illegally to social community attributes illegal gain. With absorption fund to collect money the redound such as the interest that shares a person to pay, share out bonus, and the charge such as the acting cost that absorbs capital personnel to pay to the help, benefit expenses, cost that return a dot, ought to lawfully pursue and wipe out.
This has been special make directive opinion or judicatory explanation in the light of the 3rd when collect money illegally.
Can see superintendency branch and judiciary are right from which collect money illegally the attention of the case, so can these regulations arise why to be planted to Internet finance affect?
One, the definition that collects money illegally and feature
Collecting money illegally is without concerning the branch is approved lawfully, the fund raising that includes the sectional approval that did not approve attributive; has the branch that examines and approve attributive to surmount attributive approval to collect money, the person that collect money namely does not possess fund raising main body qualification, acceptance gives contributive person to repay captital with interest inside proper time. The form that repay captital with interest is divided outside be being given priority to with monetary form, also objective form and other form; plan market fund to the target with not specific society. Here " not specific target " it is to point to social community, is not the essence that shows; of specific small number of people masks his to collect money illegally with legal form.
The 4 big features that collect money illegally:
1, approve lawfully without concerning a section, the fund raising that includes the sectional approval that did not approve attributive; has the branch that examines and approve attributive to surmount attributive approval to collect money, the person that collect money namely does not possess fund raising main body qualification.
2, acceptance repays captital with interest to contributive person inside proper time. The form that repay captital with interest is divided outside be being given priority to with monetary form, also have objective form and other form.
3, to the society not specific target plans market fund. Here " not specific target " it is to point to social community, is not to point to specific small number of people.
4, the essence that masks its to collect money illegally with legal form. To conceal its illegal purpose, criminal often with investor (victim) sign a contract, camouflage runs an activity into normal production, utmost ground achieves the ultimate goal of its diddle capital.
2, the influence to Internet finance
See from afore-mentioned regulations, the explanation that just comes on stage especially, to be full of the Internet finance of innovation spirit innovation produces very big effect. Be opposite especially numerous prepare and the impact of P2P mode is extremely big. Brief analysis is as follows:
(One) the influence to P2P
About P2P problem, the Central Bank once pointed out 3 red line before, these red line actually with collect money illegally about. Specific as follows:
The Central Bank limits 3 kinds of P2P to be suspected of collecting money illegally
P2P platform returns to intermediary attribute, network of Chinese type P2P is leasehold and cruel grow to collect money illegally what reach its place experience doubt, both borderline hopeful is farther Anacreontic change.
On November 25, 2013, the 9 ministries and commissions that can take the lead by silver-colored inspect deal with to collect money illegally department time on joint meeting, the network is leasehold domain of equity of collect of cooperation of major of as leasehold as folk, agriculture, illicit collects money illegally the 6 gale danger that waits to be labelled to need height to pay close attention to together domain.
How to limit P2P net to borrow with the bounds that collects money illegally? People bank the risk caution that the law manages relevant personage gave out to make clear, the requirement makes clear P2P network the business of leasehold platform runs red line.
The Central Bank is right " with developing P2P network leasehold business is a name to carry out collect money illegally behavior " made relatively clear limit:
The first kind is comparative currently general economy - capital pool mode, namely leasehold platform passes network of a few P2P to design loan demand product of conduct financial transactions to sell put borrow a person, perhaps put in market fund 's charge first, search loan object to wait for means again, make put the capital that borrow a person to enter the intermediate account of platform, produce capital pool, below this kind of mode, platform is suspected of drawing public deposit illegally.
The 2nd kind, collect money illegally what unqualified borrower brings about risk. Namely leasehold platform operator did not use up network of a few P2P to check obligation to borrower identity authenticity, fail to discover in time acquiesce in borrower to go up to release a large number of false loan information with the name of many false borrower in platform even (call loan mark) again, to capital of collect of not specific and most person, use at investing the market such as estate, stock, bond, futures, the capital of some direct will illegal collect is usurious piece earn benefit difference, the behavior of these borrower is suspected of drawing public deposit illegally.
The 3rd kind is typical Pang fraud. Namely individual P2P network is leasehold platform operator, release fund of false collect of usury loan mark, use borrow in early days borrow the Pang fraud mode that returns secondhand goods newly, short-term inside collect is used at oneself after a large number of capital production is managed, some operator coil even paragraph abscond. This kind of mode is suspected of be being absorbed illegally the public deposits money and collect money bilk.
The Central Bank law department is begun for P2P business gave out at 3 o'clock risk caution, "Clear platform itself must not be offerred assure, do not get capital putting in collect 's charge to get capital pool, do not draw public deposit illegally, cannot carry out more collect money bilk. Cannot carry out more collect money bilk..
How to ensure P2P platform can return to matched intermediary essence? The program that the Central Bank offers is, establish platform fund tripartite is mandatory mechanism.
"Not direct deal with puts in platform 's charge collect client capital, also have no right arrogate to oneself is used automatically in the capital with mandatory tripartite, make the intermediary that leasehold platform regression matchs P2P network substaintial.
In the Central Bank the law manages afore-mentioned personages look, a lot of P2P networks that produce capital risk to be suspected of collecting money illegally are leasehold platform, be controlled effectively for collect hind and use fund, be in a bank or tripartite pays an orgnaization to open account to put in market fund 's charge directly, finite to the use behavior lack of capital superintend.
In the meantime, the Central Bank still points out P2P network is leasehold platform should strengthen information exposure and risk clew, lender ought to is opposite interest rate abnormal is tall " loan mark " raise vigilance.
This means P2P network the examine and verify that leasehold platform ought to use up certain level is compulsory, undertake to leasehold and bilateral party sufficient information announces zephyr danger to hint.
To lender, the Central Bank points out, its should not seek the leasehold get one's own back of high interest rate overly, ought to consider interest income and capital risk integratedly, make rational investment choice.
By afore-mentioned seeing, no matter be the bounds of delimit of Central Bank official,still be two tall explanations, dou Jian points to collect money illegally, redound of commitment of financing of fair to relying on platform collect, the P2P pattern that be used for personal place or uses for other place, exist possibly offend collect money illegally legal hazard of crime.
(2) right numerous prepared impact
Numerous chip have 4 kinds of pattern, equity kind, creditor's rights kind, redound (or award kind) reach donate kind. Among them creditor's rights is many chip reflect in home for P2P this is planted configuration, industry differentiates his already technically for Internet finance a class, accordingly, what what we say is numerous preparing is do not include P2P inside chivalrous numerous chip. The analysis undertakes with respect to classification below:
1. to redound kind numerous chip
If the standard is run, aptitude of initiator of project of strict examine and verify, superintend strictly to collect capital, what this kinds of mode uses is to open to booking + the group buys pattern, it is at present those who compare safety is numerous prepare mode, won't offend collect money illegally red line, of course, a few false redound that use this mode to carry out are numerous chip be suspected of possibly collecting money illegally kind of medium fund raising swindler blame.
2.To donating kind numerous chip
If the standard is run, be engaged in commonweal charity or dream to help, obstacle of nonexistent law, conversely, if carry out bilk with this,be suspected of possibly collecting money illegally kind of fund raising in crime swindler blame.
3. to equity kind numerous chip
Equity kind numerous preparing is at present those who be put in hazard of the oldest law is numerous prepare mode, the guilty dispute law that involves the most possibly collects money in crime (collect money illegally of broad sense, the supreme court collects money illegally about cognizance judicatory explanation goes fake hair share, do sth without authorization issues share classify to collect money illegally in committing a crime to read aloud probably, limit) do sth without authorization issues share to commit a crime, this blame has two red line to cannot be touched, it is open (do not limit a number, because involve) of not specific person, 2 it is more than 200 people (although some blame appear on the market,public company shareholder exceeds 200 people, but special account is caused, in principle does not allow to break through) .
Review equity kind numerous chip, if use the pattern that has certain appeal, that must be made public or exceed 200 people, possible straight contact makes do sth without authorization issue share blame. We see partial equity is numerous chip took innovation and conservative kind, use real name the investor of attestation, be confined to is opposite among specific investor outside, use a line to issue man-to-man means sheet to talk next, invest equity with partnership fund means again. But, this kind of means is based on how to understand " open " with " not specific " , as numerous the card inspect that prepares superintendency body still can be at present in survey, if apply mechanically the regulation March 31, 2014, this means also is put in particular legal risk.
Accessory 1
On March 31, 2014, two reach the Ministry of Public Security high to be released jointly " collect money illegally about dealing with statute of criminal case comfortable use the opinion of a certain number of problems "
Each province, municipality, municipality directly under the Central Government is advanced people court, people procuratorate, public Security Department, bureau, procuratorate of court of liberation army military affairs, military affairs, production of senior people court builds the The Xinjiang Uygur Autonomous Region corps branch department, xinjiang production builds corps people procuratorate, public security bureau:
In recent years to solve court of procuratorate of public security mechanism, people, people is being dealt with collect money illegally the problem that encounters in criminal case, punish to absorb the public illegally lawfully deposit, collect money the crime such as bilk, according to the regulation of procedural law of criminal law, criminal, combine judicatory practice, deal with now collect money illegally problem of statute of criminal case comfortable use offers the following opinion:
One, the issue that holds about administration
Service is maintained to the property that collects money illegally, not be to collect money illegally criminal case enters criminal proceeding surely classics program. Service did not make property maintain to collecting money illegally, do not affect collect money illegally the investigation of criminal case, sue and try.
Court of procuratorate of public security mechanism, people, people ought to hold the property of case fact lawfully, complex to details of a case, property maintains the case of difficulty, can consult the cognizance opinion of concerned branch, make property maintain according to case fact and legal provision.
2, about " publicize publicly to the society " cognizance problem
" top people court collects money illegally about cognizance criminal case is particular applied law the explanation of a certain number of problems " the first the first the 2nd medium " publicize publicly to the society " , include to disseminate the information that draws fund to social community with all sorts of ways, and know perfectly well the message that draws fund to diffuse and give to social community the case such as indulge.
3, about " social community " cognizance problem
Following scenario is not belonged to " top people court collects money illegally about cognizance criminal case is particular applied law the explanation of a certain number of problems " of the first the 2nd section provision " draw fund in the light of specific target " behavior, ought to maintain to draw fund to social community:
(One) be in to relatives and friends or in the process that unit interior personnel draws fund, know perfectly well relatives and friends to unit interior personnel draws fund to not specific target and perhaps give the; of indulge
(2) it is a purpose in order to draw fund, recruit social personnel for unit interior personnel, draw fund to its.
4, handle an issue about what commit a crime jointly
Absorb capital illegally to provide a help to social community for other, from which the charge such as the collection representative cost, benefit expenses, cost that return a dot, commission, deduct a percentage from a sum of money, form what collect money illegally to commit a crime jointly, ought to investigate criminal duty lawfully. Can retreat capture in time of afore-mentioned charge, can punish; lightly lawfully among them the clue is slight, can punish; clue in order to absolve remarkable and slight, harm is not great, nonfeasance crime is handled.
5, the pursue and wipe out about experience case property and deal with problem
The fund that draws illegally to social community attributes illegal gain. With absorption fund to collect money the redound such as the interest that shares a person to pay, share out bonus, and the charge such as the acting cost that absorbs capital personnel to pay to the help, benefit expenses, cost that return a dot, commission, deduct a percentage from a sum of money, ought to lawfully pursue and wipe out. Collect money participate in person capital to have not remand, pays get one's own back can grant to fold reach principal.
Use the fund that draws illegally and its changeover property at pay off debt to perhaps transfer another person, have one of following state, ought to lawfully pursue and wipe out:
(One) other is known perfectly well is afore-mentioned capital reach property and the; of collection
(2) the; that other free acquires afore-mentioned capital and property
(3) the; that other reachs property with obtaining afore-mentioned fund under the price of the market apparently
(4) other obtains afore-mentioned capital and property department to result from the; that illegal debt perhaps violates guilty activity
(5) other lawfully ought to the case of pursue and wipe out.
Close down, sequestered, frozen is easy devalue reach cost of custodial, conserve taller experience case property, can sell off about the regulation in the according to before lawsuit is terminative, auction. Earning money paid for something purchased or received for something sold by close down, sequestered, freeze mechanism to give custodial, wait for deal with along with all the others after lawsuit is terminative.
Close down, property of case of sequestered, frozen experience, should be commonly after lawsuit is terminative, return still collect money participate in a person. Inadequacy of experience case property is returned entirely return, according to collect money the fund raising that participates in a person frontal scale is returned still.
6, the collection about evidence problem
Deal with collect money illegally in criminal case, truly the limitation because of external condition cannot one by one is collected collect money of the one's words evidence that shares a person, evidence mixes the one's words that the fund raising that can be united in wedlock to already was collected participates in a person to be collected lawfully and check belongs to account of solid written contract, bank to trade proof of record, accountant and accountant Zhang book, capital receives Fu Ping the evidence such as data of electron of report of card, audit, Internet, maintain integratedly collect money illegally target number and absorb the guilty fact such as capital number.
7, the processing problem about involving civil case
Investigating to court of procuratorate of public security mechanism, people, people, sue, collect money illegally of cognizance criminal case, concerned unit or the individual mentions to people court with respect to same fact civil suit perhaps applies for to carry out experience case property, people court ought to not grant to accept, move concerned material send public security office or procuratorial work mechanism.
People court perhaps carries out a process in cognizance civil case in, hair is existing and illegal collect money of guilty suspicion, ought to rule reject sue or break down is carried out, move concerned material in time send public security office or procuratorial work mechanism.
Court of procuratorate of public security mechanism, people, people is being investigated, sue, cognizance collects money illegally in criminal case, the civil case that discovery and courtyard of person civil code are hearing belongs to same fact, the property that perhaps is carried out by application belongs to experience case property, ought to report relevant people court in time. People court thinks to belong to those who be suspected of crime truly via examining, the money before according to sets processing.
8, about crossing the processing problem of area case
Cross area to collect money illegally criminal case, in make a thorough investigation of on the foundation of guilty fact, can handle respectively by court of procuratorate of the public security mechanism of different area, people, people.
Collect money illegally to dividing what manage somewhere else to cross region criminal case, ought to according to unite the plan that make to deal with experience case property.
Deregulation of national office working personnel deals with experience case property, make the crime such as dereliction of duty, ought to investigate criminal duty lawfully.
Accessory 2:
In October 2010, top people court " collect money illegally about cognizance criminal case is particular use law the explanation of a certain number of problems " top people court collects money illegally about cognizance criminal case is particular applied law the explanation of a certain number of problems, grant to announce now, apply since January 4, 2011.
Deposit money to punish to absorb the public illegally lawfully, collect money bilk illegal guilty activity, concern a provision according to criminal law, hear case of this kind of criminal now a certain number of problems of specific application law explain as follows:
The first disobeys national finance to manage legal provision, to social community (include unit and individual) the action that draws fund, have at the same time following of 4 conditions, have a regulation additionally except criminal law beyond, ought to maintain it is what criminal law sets the 176th times " absorb the public illegally to deposit money to perhaps covert absorb the public to deposit money " :
(One) absorb capital; without be approved lawfully about the branch or using the form that manages legally
(2) through media, recommend the way such as short message of meeting, handbill, mobile phone to publicize; publicly to the society
(3) acceptance is inside proper time pay redound; with the means such as money, objective, equity repays captital with interest or giving
(4) to social community namely the society is not specific the object draws fund. Did not publish conduct propaganda to the society, in relatives and friends or unit interior draws fund in the light of specific target, do not belong to be absorbed illegally or covert draw public deposit.
The 2nd carries out one of following behavior, accord with what explain the first condition of the first regulation originally, ought to according to criminal law the 176th regulation, punish with absorbing public deposit blame illegally to conviction:
(One) the true content that does not have house property sale perhaps does not produce a sale to be main purpose with the room, counter-purchase in order to return the v/arc rent land or a house for subletting after this sale, carry out, agreement, the; that sells the means such as house property portion to draw fund illegally
(2) protect the; that waits for means to draw fund illegally with making over Lin Quan to be in charge of for you
(3) cultivate in order to take the place of (breed) , hire cultivate (breed) , cultivate jointly (breed) the; that waits for means to draw fund illegally
(4) do not have the sale commodity, true content that provides a service to perhaps be not tasted with distributors, offer a service to be main purpose, counter-purchase with commodity, the; that the means such as check be commissioned to sell sth draws fund illegally
(5) do not have the true content that issues stock, bond, with making over fiction of equity, put on sale phonily the means such as bond absorbs the; of capital illegally
(6) the true content that does not have collect fund, with fiction of the fund outside condition of make use of, put on sale the means such as fund absorbs the; of capital illegally
(7) the true content that does not have sale insurance, with the sham insurance company, ; that forges the means such as insurance bill to draw fund illegally
(8) the; that draws fund illegally with investing the way that become a shareholder
(9) the; that draws fund illegally in order to trust the kind of conduct financial transactions
(10) use folk " meeting " , " company " the; that waits for an organization to draw fund illegally
(11) other and illegal the action that draws fund.
The 3rd be absorbed illegally or covert draw public deposit, have one of following state, ought to investigate criminal duty lawfully:
(One) the individual is absorbed illegally or covert absorb the public to deposit money, amount is in of 200 thousand yuan of above, the unit is absorbed illegally or covert draw public deposit, amount is in the; of 1 million yuan of above
(2) the individual is absorbed illegally or covert draw public deposit target of 30 people above, the unit is absorbed illegally or covert draw public deposit target the; of 150 people above
(3) the individual is absorbed illegally or covert absorb the public to deposit money, be in into amount of immediate pecuniary loss to deposit man-made of 100 thousand yuan of above, the unit is absorbed illegally or covert draw public deposit, be in into amount of immediate pecuniary loss to deposit man-made the; of 500 thousand yuan of above
(4) cause abominable society to affect other perhaps and serious consequence. Those who have one of following state, belong to what criminal law sets the 176th times " amount is huge perhaps have other and serious plot " :
(One) the individual is absorbed illegally or covert absorb the public to deposit money, amount is in of 1 million yuan of above, the unit is absorbed illegally or covert draw public deposit, amount is in the; of 5 million yuan of above
(2) the individual is absorbed illegally or covert draw public deposit target of 100 people above, the unit is absorbed illegally or covert draw public deposit target the; of 500 people above
(3) the individual is absorbed illegally or covert absorb the public to deposit money, be in into amount of immediate pecuniary loss to deposit man-made of 500 thousand yuan of above, the unit is absorbed illegally or covert draw public deposit, be in into amount of immediate pecuniary loss to deposit man-made the; of 2.5 million yuan of above
(4) cause particularly abominable society to affect other perhaps and special serious consequence. Be absorbed illegally or covert the number that draws public deposit, the capital sum that absorbs in order to go for person place is calculated. The amount that case hair around already remanded, can regard take into consideration the circumstances of clue of measurement of penalty as the consideration. Be absorbed illegally or covert draw public deposit, basically use at normal production to run an activity, can seasonable Qing Dynasty retreats place to draw fund, but lest grant clue of criminal punishment; is remarkable and slight, nonfeasance crime is handled.
The 4th is a purpose with detinue, use bilk method carries out what this explanation stipulates place lists action the 2nd times, ought to according to criminal law the 192nd regulation, with collecting money crime of fraud convictions punishment. Use bilk method collects money illegally, have one of following state, can maintain for " it is a purpose with detinue " :
(One) the activity need not be managed to perhaps be used at production to manage at production after collecting money activity and prepare market fund dimensions apparent disproportionate, cause collect money the paragraph cannot return returned;
(2) wanton and prodigal collect money paragraph, cause collect money the paragraph cannot return returned;
(3) carry collect money the; of paragraph abscond
(4) will collect money a; that is used at violating guilty activity
(5) smoke escape, move capital, hide belongings, escape return the; that returns fund
(6) hide, items of an account of destroy by melting or burning, perhaps do a holiday to go bankrupt, the holiday closes down, escape return the; that returns fund
(7) refus does not explain capital whereaboutldirection, escape return the; that returns fund
(8) other and OK the case of cognizance detinue purpose. Collect money the detinue purpose in crime of fraud, ought to distinguish case undertakes specific maintain. Behavior person part collects money illegally behavior has detinue objective, to should collecting money illegally partly behavior place experience collects money paragraph in order to collect money crime of fraud convictions person of behavior of the part in punishing; to collect money illegally to commit a crime jointly has detinue objective, other action person collects money without detinue of the paragraph mix intentionally jointly of behavior, with collecting money to having the travel humanness of detinue purpose crime of fraud convictions punishment.
The 5th the individual undertakes fund raising bilk, amount is in of 100 thousand yuan of above, ought to maintain for " number is larger " ; amount is in of 300 thousand yuan of above, ought to maintain for " amount is huge " ; amount is in of 1 million yuan of above, ought to maintain for " amount is particularly huge " .
The unit undertakes fund raising bilk, amount is in of 500 thousand yuan of above, ought to maintain for " number is larger " ; amount is in of 1.5 million yuan of above, ought to maintain for " amount is huge " ; amount is in of 5 million yuan of above, ought to maintain for " amount is particularly huge " . Collect money the amount of bilk is a person with going the amount computation of actual diddle, the amount that already remanded before case hair should grant to deduct. Behavior person collects money to carry out bilk activity and fund raising advertisement fee, intermediary cost, poundage, rake-off, perhaps use at bribery, donative wait for charge, do not grant to deduct. Behavior person collects money to carry out bilk activity and fund raising interest, did not remand except capital can grant to fold reach principal beyond, ought to plan join bilk number.
The 6th concerns director department approval without the country, to the society not specific target is issued, issue a share with making over the means such as equity to covert or bond of company, enterprise, perhaps issue to specific target, covert issue a share or accumulative total of bond of company, enterprise exceeds 200 people, ought to maintain it is what criminal law sets the 179th times " do sth without authorization issues bond of stock, company, enterprise " . Make crime, with arrogate to oneself blame of bond of initiative travel stock, company, enterprise convictions punishment.
The 7th violates national regulation, without lawfully approve do sth without authorization distributes fund of fund portion collect, the clue is serious, according to criminal law the 225th regulation, punish with managing a blame illegally to conviction.
Promulgator of operator of the 8th advertisement, advertisement disobeys a country to set, use ad to collect money illegally the commodity related the activity perhaps serves false conduct propaganda, have one of following state, according to criminal law the 222nd regulation, conviction with false advertisement blame punishment:
(One) illegal income amount is in the; of 100 thousand yuan of above
(2) cause the; that endangers effect of sequential abominable perhaps society badly
(3) advertisement is used to make false conduct propaganda inside 2 years, had sufferred administration to punish the; of above 2 times
(4) the case with other severe scenario. Know perfectly well other to be engaged in issueing stock, bond false, draw public deposit illegally, do sth without authorization issues stock, bond, collect money bilk perhaps is organized, the leader is passed sell an activity to wait collect money guilty activity, offer the conduct propaganda such as advertisement for its, with the accomplice punish of relevant crime.
The 9th judicatory explanation that releases before this is as abhorrent as this explanation, it is with this explanation accurate.
