The Criminal Law Amendment solicits opinions on the crime of illegally absorbing public deposits and the crime of fund-raising fraud

The 11th Amendment to the Criminal Law has been put on hold for public comment as scheduled. Judging from the content of the amendment, some of it is necessary to fulfill my country's international legal obligations - the economic and trade agreement between my country and the United States had a special agreement on the criminalization of intellectual property rights. In response, the 11th Amendment also has corresponding adjustments.

However, Sister Sa only cares about her own little piece of land. We have some personal opinions on the revision of the provisions on the crime of illegally absorbing public deposits and the crime of fund-raising fraud , and I can't help but express them today.

Crime of illegally absorbing public deposits

Open the Criminal Law and find Article 176. Whoever illegally absorbs public deposits or collects public deposits in disguised form and disrupts the financial order shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall be fined not less than 20,000 yuan but not more than 200,000 yuan; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall be fined not less than 50,000 yuan but not more than 500,000 yuan.

This provision is proposed to be amended as follows: Whoever illegally absorbs public deposits or absorbs public deposits in disguised form and disrupts the financial order shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall be fined or fined alone; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall be fined; if the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than ten years and shall be fined.

Please note that there are two changes:

First, the amount of the fine has changed from "definite" to "undefinite" , that is, the previous maximum fine limit was 200,000 and 300,000 respectively, but now the fine can be increased or decreased as appropriate. As an experienced lawyer with more than ten years of experience, I can judge that in future cases, an increase in fines is more likely to happen. As for how much, it is hard to guess now, and there will be judicial interpretations or practical practices in the future.

Second, the new category of "particularly huge or other particularly serious circumstances" has been added. That is, the maximum sentence for illegal fund-raising has been increased from 10 years to 15 years. In other words, on the basis of the old law that divided this crime into two categories, an additional category has been added.

We think this is mainly related to the rise and fall of Internet finance in recent years. P2P online lending platforms are often involved in criminal cases involving hundreds of millions or even tens of billions of yuan, while the highest threshold for conviction in the old law is 5 million yuan. When faced with cases involving hundreds of millions of yuan, the judicial authorities still use the same means of crackdown, and have not strengthened them. In other words, the sentencing range is the same for cases involving amounts of more than 5 million yuan to tens of billions of yuan. In this way, it is obviously impossible to distinguish the "should be sentenced" for different amounts of crime.

The draft adds a 10-15 year sentence for cases involving extremely large amounts of money. Based on my experience, I guess the extremely large amount of money involved in this crime may be set at 50 million yuan . If yes, it is actually impossible to distinguish between the platform owners of 100 million yuan and 10 billion yuan in online loan platform cases, and the real "deserved sentence".

Sister Sa believes that other particularly serious circumstances may very likely involve the death of fund-raising participants. Please be sure to pay attention to maintaining the mental state of fund-raising participants to prevent tragedies.

In terms of prison terms, the maximum prison term is 15 years. In other words, the maximum prison term for the crime of illegally absorbing public deposits will be increased from 10 years to 15 years in the future, and online loan platforms with tens of billions of yuan in assets are expected to "enjoy" this treatment.

Fund-raising fraud

Let’s look at Article 192 of the Criminal Law: “Whoever illegally raises funds by fraudulent means for the purpose of illegal possession, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall be fined not less than 20,000 yuan but not more than 200,000 yuan; if the amount is huge, or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and shall be fined not less than 50,000 yuan but not more than 500,000 yuan; if the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment and shall be fined not less than 50,000 yuan but not more than 500,000 yuan or have his property confiscated.”

It is proposed to be amended to "If a person illegally raises funds by fraudulent means for the purpose of illegal possession, and the amount is relatively large, he shall be sentenced to fixed -term imprisonment of not less than three years but not more than seven years and a fine; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than seven years or life imprisonment and a fine or confiscation of property."

There are three changes:

First, the specific amount of the fine has been removed . The reason analysis is the same as Article 176 of the Criminal Law on the crime of illegally absorbing public deposits.

Second, the minimum sentence was changed from detention to three years in prison.

The minimum sentence for fund-raising fraud is now detention, and there is no need to be detained in a detention center or prison to serve the remaining sentence. Since the death penalty for fund-raising fraud was abolished in Article 199 of the Criminal Law, there have been voices in the industry saying: the force is not enough, and the death penalty should be restored. But the legislature still withstood the pressure. However, in the face of the rampant fund-raising fraud, it is still necessary to crack down on it. In this way, the draft directly upgrades the minimum sentence, which is also a solution.

Third, criminal files involving particularly large amounts of money have been removed.

Compared with Article 176 of the Criminal Law, which adds a third criminal file for the crime of illegally absorbing public deposits, Article 192 of the Criminal Law, which removes this criminal file for the crime of fundraising fraud, there is no longer a distinction between a huge amount and an extremely huge amount. This gives judicial officers a lot of discretion: whether to sentence someone to seven years or life imprisonment is up to them.

According to the Supreme People's Court's 2010 "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Illegal Fund-raising," a huge amount is defined as 300,000 yuan, and an extremely huge amount is defined as 1 million yuan. However, in judicial practice, the 300,000 yuan criminal record is rarely used, as cases nowadays often involve amounts exceeding 100 million yuan.

In a case, Sister Sa tried her best to get 50% of the crime amount, and the prosecutor calmly said: As long as it is not less than 1 million, what's the point? ! I still remember this vividly.

Since the second file is almost always shelved in practice, it is better to delete it and keep both files, extending the entire crime from 3 years to life imprisonment to play a deterrent and strike role.

Final Thoughts

This article will not list the addition and modification of other charges one by one. As I said before, Sister Sa is only responsible for her own little piece of land.

I must admit that if the eleventh amendment to the Criminal Law is officially issued, it will have a significant impact on online lending and other Internet finance platform cases in recent years. Its direct effect is "severe punishment". It can be said that this is bad news for old friends in the Internet finance industry.

At present, what we can do is to buy time and increase the amount of money we get back. At the same time, friends who are out on bail must not be passive and lazy. In a certain place in Zhejiang, the charge of online loan platform executives who were not active in collecting money within two years was changed from illegal fund-raising to fund-raising fraud.

Therefore, I urge everyone to be diligent, prepare knowledge in advance, and face it bravely. If you really can't stand it, there is still Sister Sa.

Source: Xiao Sa lawyer