The following focuses on the analysis of illegal business and fraud (including fraud, contract fraud and fund-raising fraud) involved in underground gold futures trading fraud.
(A) the nature of the crime of illegal business operations
According to the provisions of Article 225 of the Criminal Law, anyone who illegally engages in futures business in violation of state regulations without the approval of the relevant competent departments of the state shall be convicted and punished for the crime of illegal business. Then, can the fraudulent behavior of underground gold futures trading be classified as "illegal futures business"? Literally, it can't be completely denied. First of all, from the object of crime, "underground gold speculation" is called "underground" because it engages in gold futures trading activities without the approval of the relevant departments, which violates the administrative licensing system for organizing futures trading, the management system and order of the gold futures market, and its behavior conforms to the objective elements of the crime of illegal business operation, as well as "violation of state regulations" and "irrelevant to the state" as stipulated in Article 225 of the Criminal Law. Secondly, from the objective behavior, organizers and participants who illegally operate gold futures use various fraudulent means to defraud investment clients' funds, which undoubtedly belongs to illegal business activities and should belong to the category of "illegal futures business". In practice, most underground gold futures markets are covered by domestic agents of overseas trading institutions, requiring investors to deposit or remit funds in foreign currencies, thus playing the role of "underground money houses". Article 4 of the NPC Standing Committee's Decision on Punishing Crimes of Cheating, Evading and Illegally Trading Foreign Exchange stipulates that anyone who illegally buys or sells foreign exchange outside the trading places stipulated by the state and disrupts the market order, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation. Therefore, some people argue that underground financial futures trading cases can be handled from the perspective of violating the state's foreign exchange control, and that underground financial futures trading behavior constitutes the crime of illegal business operation. ⑶
However, it should be noted that the stipulation of "illegally operating futures business" in Article 225 of the Criminal Law is a helpless choice for the legislature to pursue a unified criminal code. It can be said that the crime of illegal business operation was originally established to disintegrate the "pocket crime" of speculation, but it turned out to be a new pocket crime. According to the relevant provisions of the current criminal law, criminal law amendment and judicial interpretation, more than a dozen acts are recognized as "other illegal business behaviors that seriously disrupt the market order", including: illegal trading in foreign exchange, illegal publishing, illegal telecommunication business, illegal pyramid selling or disguised pyramid selling, production and sale of feed containing lean meat, illegal salt trading, price gouging, profiteering, unauthorized network operation, and unauthorized issuance and sale of lottery tickets. Criminal judgments in some places have expanded the connotation of the crime of illegal business operation beyond judicial interpretation. If a crime is accused of "pocket crime", it can include different illegal acts, which means it conflicts with the principle of legality and respect for human rights. Because all kinds of behaviors are often very different and their harmfulness is different, it seems that it is incompatible to share the same sentencing standard for illegal futures business and other different forms of illegal business activities. At the same time, there is no unit crime provision in the criminal law for the crime of illegally operating futures business, but in practice, most of them are units that illegally operate futures business. If only the criminal responsibility of the relevant natural persons is investigated, it is obviously reluctant, and the relevant units can also escape the blame.
From the perspective of perfecting legislation, criminal law should separate futures trading fraud from the crime of illegal business operation and set up new charges to regulate it. Many countries attach great importance to the criminal supervision of futures trading. There are many types of fraud crimes in futures trading, including over-the-counter trading, private hedging, cross-trading, front-end trading, continuous trading and rolling trading, excessive trading, untrue reports and records, fraudulent misleading trading, "forced liquidation" to defraud funds, clever injunction, manufacturing facility failure, virtual trading and so on. ⑷ Compared with foreign criminal legislation, China's criminal law does not stipulate futures trading fraud such as private hedging as a crime. Drawing lessons from foreign criminal legislation, it is suggested to add a crime of "futures trading fraud" to China's criminal law, which can be expressed as "cheating futures investors in futures trading and related activities, and the crime of fabricating and spreading false information that affects futures trading and the crime of luring investors to buy and sell futures contracts as stipulated in Article 18 1 of the Criminal Law. These futures trading frauds, the Regulations on the Administration of Futures Trading, After the crime of futures trading fraud is established, the crime of futures trading fraud in "illegal futures business" can be separated from the crime of illegal business operation, so as to avoid the crime of illegal business operation from further "pocketing".
(B) the nature of the crime of fraud
In practice, underground gold speculation companies or individuals are outside the government's supervision, and there are often various fraud factors in the process of attracting customers and conducting business, such as fabricating the identity of their own agency, concealing trading risks, exaggerating income and so on. Although most judicial organs characterize gold futures trading fraud as illegal business, we can't deny the possibility of identifying it as a fraud crime. As mentioned earlier, "illegal operation of futures business" includes futures trading fraud, which is "cheating" in terms of behavior and means and has the nature of fraud crime. However, the existence of fraudulent factors in underground financial futures trading and its behavior constitute the crime of fraud belong to two levels, and it cannot be regarded as the crime of fraud just because of fraudulent factors. As some scholars have pointed out, different fraud standards should be applied to life, market, investment and speculation respectively. In the above-mentioned fields, the scope of the crime of fraud, which focuses on the protection of property rights, presents a shrinking state, that is, "life coexists with criminal law, market fraud retreats, investment conflicts with punishment, and speculation does not cheat" 5. Especially in the field of investment, in order to keep the investment market in a game nature, the criminal law has a high tolerance for fraud, a weak protection of property rights, and a relatively narrow scope of application of fraud; The law should not pay attention to protecting the property rights of this kind of speculative behavior that pursues ultra-high returns, because since participants are aware of the risk of fraud, they cannot become victims of fraud when their property is damaged. However, this does not mean giving up the criminal law protection of trading order and market rules. "Underground gold speculation" belongs to extrajudicial gold speculation, and participants are cheated. Although it is not appropriate to characterize the organizer as fraud, his behavior of disrupting the order of the gold futures trading market must be punished criminally.
Therefore, for the fraudulent behavior of underground gold futures trading, the key to determining that it constitutes the crime of fraud or illegal business operation lies not in its behavior, but in the object nature of its infringement. In the crime of fraud, the single object of fraud is the ownership of public and private property, while the objects of contract fraud and financial fraud belong to complex objects, the main objects are financial market order or financial management system respectively, and the secondary objects are the ownership of public and private property; The object of the crime of illegal business operation is the market economic order. What is the crime of illegally operating gold futures? It is necessary to make a concrete judgment on the object of criminal law protection: (1) If the perpetrator does not set up a gold futures trading institution without authorization, but only an individual defrauds the money of a specific victim in the name of investing in gold futures, this behavior is limited to the life field, and has no direct or indirect connection with the gold futures market trading, nor does it have an impact on disrupting the normal gold futures market order, then the criminal law only protects the property rights of the victim. (2) If the perpetrator illegally engages in gold futures trading, establishes a gold futures trading institution without authorization for the purpose of illegal possession, and uses fraudulent means such as fictitious online trading platform to defraud the money of investment customers, which meets the constitutive requirements of fraud, it can be identified as contract fraud or fund-raising fraud. At this time, the actor violated the complex object, that is, the victim's property rights and the normal market order of gold futures trading. (3) If the actor illegally engages in gold futures trading outside the formal futures market for the purpose of making profits, not illegal possession, using false futures trading brokers and staff or fictitious futures trading network platforms, but investors are not completely ignorant of fraud and virtual rules, but have a general understanding, and participate in it with the speculative intention of "speculation" and "gambling" to form an interaction with the bookmakers. At this time, the object of criminal law protection is no longer the property rights of investment customers, but the normal market order of gold futures trading, which should be regarded as the crime of illegal business rather than fraud.