民间融资的刑法规制及司法现状(英文版)

一本研究民间融资的刑法规制及司法现状的专业书稿。

This research will discuss the following contents in five chapters:

The first chapter introduces the development process of private financing in China and the change of the government's attitude towards private financing, so as to explain: 1. As one of the definite results of 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 on private financing, but the demand for economic development has forced this attitude to sway continuously from one side to another. 3. Difficulties in fund-raising and the risk of fund-raising behavior (including both borrowing and lending) being hit as crimes have abnormally pushed up interest rates too high while high interest rate is also could be punished as crimes. 4. The problem of fraud in the expansion of private financing under the current policies is becoming more and more serious, and it has been evolving in depth with the development of new technology and finance.

The second chapter analyzes the criminal composition (elements which should be established) and legislative as well as judicial 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. It makes the possible charges and accusations expand too far and hit a large scope of activities, thereby threatening normal business; 2. Sometimes it will force normal business activities to turn into real criminal behaviors; 3. And it will encourage real fraudulent operations to take advantage of the mixed state to choose fraud by financing, which has become a "safe haven" for fraud activities because many of them have possibilities ( of which will be showed further in Chapter four) only being found guilty for illegal absorbing public deposits for which the penalty is lighter than that for any other crimes of frauds.

The third chapter analyzes the only difference between illegally absorbing public deposits and fund-raising fraud--the purpose of "illegal possession" at the same time of illustrating the existing vague judicial practice further blurring the boundary between these two crimes.

The fourth chapter shows the trend of illegal fund-raising cases (including cases of illegally absorbing public deposits and fund-raising fraud) in China through data analysis. This part can see the risks of private financing and the scale of criminal evolution and analyzes the attitudes and trend of judicial judgments. The conclusion for the evaluation of the data is that the conviction of illegally absorbing public deposits is a policy-oriented choice. But if both the charges of illegally absorbing public deposits and fund-raising fraud have the function of maintaining the current financial control policy and the boundary between them can be easily ignored, why is there such a trend?

The fifth chapter analyzes 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 accomplices in 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 for the 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.

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).