Lawyer Zeng Jie, financial crime defense lawyer, senior partner of Guangqiang Law Firm, director of defense and research center for illegal fund-raising cases.
(It shall not be reproduced without the permission of lawyer Zeng Jie himself)
abstract:
When P2P is suspected of illegally absorbing public deposits, whether to file a case is not a qualitative issue, and it should not even be discussed in criminal court. The key is whether the fund-raising behavior itself meets the relevant elements of the crime of illegal fund-raising
Text:
This article will take the case No.64: Yang Weiguo and others illegally absorbing public deposits as an interpretation case. The trial number of the first case is (20 17) Zhejiang 0 104 133. In this case, there are several issues worthy of attention and study.
1. Is it illegal for peer-to-peer lending information intermediary to be suspected of illegal fund-raising?
In judicial practice, there is often a false accusation, that is, the existence of P2P itself constitutes illegality, or P2P's failure to perfect the filing procedure constitutes "illegality" of illegal fund-raising. This understanding is one-sided and wrong, which will lead to a common logical fallacy, that is, if a P2P completes the filing procedure, will it not meet the requirements of "illegality"? Will it constitute the crime of illegally absorbing public deposits? However, filing a case itself will not have a practical impact on the business model, so this accusation logic has led to the wrong identification of some public prosecution agencies at present.
On this issue, the Supreme People's Procuratorate put forward a general qualitative theme for the case. "Peer-to-peer lending intermediaries illegally control and control funds, which constitutes illegal absorption of public deposits. Zhou Wang Group's collection, control, control, use and repayment of principal and interest of investment funds of wealth management customers are essentially the same as those of commercial banks. Innovative peer-to-peer lending information intermediary behavior that is not allowed by the state. No matter whether the state has issued regulations on information intermediaries in peer-to-peer lending, criminal responsibility should be investigated according to law if such acts are carried out without approval. According to the four conditions (illegality, openness, sociality and seduction) of the crime of illegally absorbing public deposits mentioned in the judicial interpretation of the Supreme Law 20 1 1 illegal fund-raising case, the theme of this guiding case can be used as the qualitative principle of the crime of illegally absorbing public deposits by information intermediaries in peer-to-peer lending, that is, for P2P itself, the judicial organ does not characterize its own existence or its original model as illegal, but its original model as illegal. The illegal control and domination of funds by P2P platform will constitute the source of illegality, based on the logic of the court in this case. The court mentioned in the judgment that the People's Republic of China (PRC) Commercial Bank Law stipulates that no unit or individual may engage in commercial banking business such as absorbing public deposits without the approval of the the State Council Banking Regulatory Authority. There is evidence that Zhou Wang Group and Zhou Wang Fortune are not qualified as banking financial institutions, but the defendant Yang Weiguo still instructed the company to publicize and absorb huge amounts of money. In fact, he is engaged in the business of commercial banks absorbing public deposits, which violates the laws and regulations of China's financial management.
The court's determination of illegality from the perspective of commercial banking law can actually be said to have grasped the core issue of illegal fund-raising cases. The "deposit" in illegally absorbing public deposits is a business object exclusively belonging to commercial banks. All illegal fund-raising activities are suspected of this crime, and they can't escape the identification of the word "deposit".
In other words, it can be considered that the macro-criminal object of illegally absorbing public deposits is the financial management order of the country, and the micro-criminal object is the unique business right of China's banking financial institutions to absorb deposits for the public. In this unique definition, the crime of illegally absorbing public deposits and the crime of illegal business operation can be regarded as the same type of crime, both of which violate the licensing system of a country's franchise business. Banks, securities, futures, (public) funds and insurance all enjoy the unique protection of criminal law.
Therefore, the 1 1 amendment to the Criminal Law adjusted the statutory maximum penalty for the crime of illegally absorbing deposits and the crime of illegal business operation to be the same, that is, the maximum 15 years of fixed-term imprisonment, thus forming the unity of legislative effects. Otherwise, the maximum sentence for violating the bank deposit business license system is 10 year, while the maximum sentence for violating the insurance business license system is 15 year, which will lead to a kind of "favoritism" mistake.
In the guiding significance of this case, the Supreme People's Procuratorate mentioned the legitimacy and necessity of the existence of P2P platform, that is, "In order to solve the social capital demand that traditional financial institutions can't cover and meet, and alleviate the small capital difficulties in the operation of self-employed individuals and small and micro enterprises, the financial regulatory agency of the State Council issued the Interim Measures for the Management of Peer-to-Peer Lending Activities of Information Intermediaries on 20 16 and other" three guidelines in one law ". Allow units or individuals to make small loans through peer-to-peer lending information intermediaries within the specified loan balance, and clarify the upper limit of the loan balance of a single institution and individual on a single platform and multiple platforms. "
It can be seen that the identification of illegality itself is the identification of fund-raising behavior of relevant fund-raising entities, rather than the qualitative evaluation of its original business model, including private equity funds, consumer rebates, online or offline lending information intermediaries, etc. Instead, we should evaluate their alleged fund-raising behavior itself.
2. The fund pool is the key red line of P2P lending information intermediary platform suspected of illegal fund-raising.
In this guiding case, the most controversial thing is that the total amount of illegally absorbed deposits is 64190,000 (total online business+offline business), but the defendant Yang Weiguo suggested that the amount of crimes should be deducted from the funds flowing in through online means, the funds invested by employees of the company involved and the funds invested in the entity enterprise.
The reason why the network funds were deducted was because the defendant Yang Weiguo thought that the network platform operated normal P2P business, and all the network credit customers existed, and there was no pool of funds, nor did it absorb public deposits. Therefore, it does not need to obtain a financial license, and it can operate within the business scope permitted by the business license.
The key to this factual defense is that it believes that there is no cash pool in online business. The public prosecutor's argument on this issue was proved by asking questions to the court. For example, by asking Wu Meng, the head of the clearing center of Zhou Wang Group, it is known that after the wealth management customer recharges the virtual account of the third-party payment platform under the online business mode, the Zhou Wang Group operator directly transfers it to the borrower's account. If there are enough funds on that day, sometimes it will be transferred to the escrow account set up by Yang Weiguo on the third-party payment platform, and then the cash will be withdrawn to the bank account bound by Yang Weiguo to pay the offline principal and interest. The confession of such defendants in court proved that Zhou Wang Group directly controlled its virtual account on the third-party platform and set up a custody account to realize the collection, control, control and use of wealth management customers' funds, thus forming a fund pool.
In the evidence-giving stage of trial, the public prosecutor proved that Zhou Wang Group's network business does not belong to the information intermediary business in peer-to-peer lending by presenting documentary evidence, audit report, electronic data, witness testimony, defendant's statement and defense. For example, the third-party payment platform (Fu You) gives Zhou Wang Group the right to freeze, transfer and inquire the funds in the virtual accounts of all wealth management customers. After the wealth management customers transfer the funds to the virtual accounts of the third-party platforms, Zhou Wang Group manually matches the funds lent by the wealth management customers with the loan demand of the credit customers through many-to-many ways every day, resulting in the mismatch between the loan terms of the credit customers and the loan terms of the wealth management customers, and there are some problems such as term mismatch.
As a result, the public prosecutor proved the confusion of Zhou Wang Group's online and offline business through a series of investigations and giving evidence in court. This kind of confusing behavior, the prosecutor believes, is essentially a direct or indirect fund-raising, or even a self-financing or disguised self-financing behavior, and its essence is to absorb public deposits.
The defense of this fact holds that "before the state regulated P2P business, Zhou Wang Group did not violate the criminal law, which belongs to the scope of civil law adjustment and should not be subject to criminal punishment. The amount of crime should be deducted from the funds flowing in through the online mode. " The public prosecutor believes that Zhou Wang Group's network intermediary business in P2P lending has been alienated from information intermediary to credit intermediary. The collection, control, control, use and repayment of principal and interest of investment funds of wealth management customers are the same as those of commercial banks, and do not belong to the innovative peer-to-peer lending information intermediary behavior permitted by the state. Regardless of whether the state has introduced regulations on information intermediary in peer-to-peer lending, criminal responsibility should be investigated according to law if such acts are carried out without approval. Therefore, the funds absorbed online should be included in the crime amount. (In addition, in addition to the identification of the fund pool, the prosecutor also gave evidence of inducement, openness and socialization. )
Therefore, it can be concluded that the guiding significance of this case is that whether P2P is suspected of illegally absorbing public deposits is not a qualitative issue, and it should not even be discussed in criminal court. The key is whether the fund-raising behavior itself meets the relevant elements of the crime of illegal fund-raising
(The above contents were summarized by Mr. Zeng Jie, director of the Defense and Research Center for Illegal Fund-raising Crime of Guangqiang Law Firm, hoping to provide useful help for criminal defense. Everyone is welcome to make criticisms and suggestions and communicate more. )