Article serialize at " diary of plead of crime of Ceng Jie finance "
Recently, platform of P2P conduct financial transactions explodes Lei Chao causes attention, the platform such as finance of finance of a round flat piece of jade with a hole in its center of Tang Xiaoseng, couplet, forest of be apt to admits public deposit guilt illegally already put on record, accordingly, about platform aptitude lawful, whether to accord with admit public deposit guilt illegally " illegal sex " the attention that the problem caused the public.
The illegal sex feature that admits public deposit guilt illegally is to point to disobey national finance to manage legal provision to draw fund, incorporate is absorbed to be approved lawfully without concerning a section capital and use the form that manages legally to draw fund two kinds.
Be in a lot of fund raising bilk and in absorbing public case illegally, the fund raising of the accused person whether does behavior have law basis, relevant collect money whether does platform have lawful aptitude.
It is for instance in the judgment of this kinds of a lot of cases, think in the court part, most metropolis has " XXX company falls in the case that does not have aptitude of open collect capital, publicize its publicly to invest economy business, to fund of not specific social community collect, affirmatory redound of money of high specified number and protect this protecting breath ~~ " one of be stated this kind, clarify namely of platform " illegal sex " problem, the cognizance that proves a court namely accords with relevant law basis.
Alleged " illegal sex " , it is to point to absorb the public illegally deposit blame makes one of important document 4 times. Basis " highest courtyard collects money illegally about cognizance criminal case is particular applied law the explanation of a certain number of problems " , if accord with 4 characteristics, if do not have other provision, can form admit public deposit guilt illegally. These 4 conditions are " illegal sex " " open sex " " sex of lure by promise of gain " " sociality " . (illegal sex) draw fund without be approved lawfully about the branch or using the form that manages legally; (open sex) through media, recommend the way such as short message of meeting, handbill, mobile phone to publish conduct propaganda to the society; (sex of lure by promise of gain) acceptance is inside proper time repay captital with interest with the means such as money, objective, equity or give pay get one's own back; (sociality) 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. Do not belong to be absorbed illegally or covert draw public deposit..
Problem one: Have acting character of lawful industrial and commercial business charter, star to wait not to explain its are certain and lawful?
A lot of people have an error, think to want P2P platform to have lawful industrial and commercial business charter only, often perhaps go up TV, on news, even star acting character thinks to decide lawful finance orgnaization firstly, do not accord with admit public deposit guilt illegally " illegal sex " feature, do not form thereby absorb the public illegally deposit suffering is other perhaps and illegal collect money kind of crime, wait for platform operation process in a round flat piece of jade with a hole in its center of finance of forest of be apt to, Qian Bao, couplet for instance in, its itself has lawful business aptitude, have many media reports and interview, have local leader even inspect and approbate, cannot be " illegal " .
Problem 2: To P2P platform, itself cannot can depend on, talk about He Fei law?
To P2P platform, majority is in 2012-2014 year between build, because till August 2016 meeting, industry mixes portion China silver-colored inspect,office of information of Internet of informatization ministry, the Ministry of Public Security, country just was made " activity of business of orgnaization of leasehold message medium manages the network temporary measure " , because this has a viewpoint to if the court identifies those who decide relevant platform to hold water not to have the point of view of legal basis with this,think,do not hold water, namely the law is not had prohibit namely free. Be in for instance benefit city E fast borrow in understanding treasure proposal with Shenzhen, both sides dominating debate has the engage in a battle of this kind of viewpoint. But two kinds of innocent viewpoints also often cannot get above of the judge approbate.
Illegal sex is the illegal sex that points to business mode, and rather than manages the illegal sex of main body
Alleged " illegal sex " , it is to show the business mode of relevant behavior person or platform does not have illegal sex constitutionally, absorb without concerning a branch to be approved lawfully namely capital and use the form that manages legally to draw fund two kinds, the behavior that the key depends on drawing fund and business mode are illegimate, is not main body qualification illegimate, and the qualification of relevant main body, it is to point to what business qualification perhaps is in charge of a branch its are industrial and commercial commonly register. Have id card like each person, everybody is lawful consist in world, but everybody has different behavior pattern, some people commit a crime, some people do not commit a crime, because have id card,not be, representing criminality is lawful, this is same logistic. The court often can think, platform obtained relevant and lawful main body aptitude related even if, be like business charter or accredit, but belong to the pattern that uses the form that manages legally to draw fund, for instance " activity of business of orgnaization of leasehold message medium manages the network temporary measure " with respect to the regulation: "Plan to develop the network that leasehold message medium serves the network orgnaization of leasehold message medium and its branch, after ought to receiving business patent, at 10 workaday less than carries concerned material to superintend a branch to put on record to finance of place of ground of industrial and commercial registration book register. " leasehold to the network platform, the lawful scope of operations of platform is a network leasehold message medium, if platform surface is appearance with this kind of legal professional work, carry out essentially wait for business from pool of be in harmony, capital, can think not to have lawful sex, accord with namely admit public deposit guilt illegally " illegal sex " requirement.
Because this is in apologetic fact Wu, should put innocent perspective emphasis in platform business mode on whether lawful key, is not the general aptitude that sees platform itself lawful sex problem, the fixed income plan that should pay close attention to platform to roll out for instance is affirmatory protect this payment of interest, leasehold intermediary plans to whether be suspected of be being waited a moment from be in harmony. (compose of wide Jiang Cengjie on August 22, 2018)
