Crime of illegal business operation, that is to say, operating franchised or monopolized commodities or other commodities with restricted trading without permission, buying and selling import and export licenses, import and export certificates of origin, business licenses or other approval documents stipulated by laws and administrative regulations, and engaging in other illegal business operations that disrupt market order and have serious circumstances.
According to the Banking Supervision Law, the Commercial Banking Law and other relevant laws and regulations, no unit or individual may set up or engage in the business activities of banking financial institutions, or engage in commercial banking business such as absorbing public deposits, without the approval of the the State Council Banking Regulatory Authority, and no unit may use the word "bank" in its name.
Then, if the P2P platform does not cross the "red line" of "ten ministries and regulations" at the regulatory level, can it avoid criminal legal risks at the judicial practice level? On February 6, 20 14, 14, he was acquitted in the second instance. According to the judgment, the people's court made the following explanation on the compliance of "introducing natural person to borrow money":
(20 14) Rong xing zhong zi No.741(platform: Yixin Pratt & Whitney Company)
The court held that there was no evidence to support the appellant Lin Moujia's crime of illegal business operation. In the whole process of loan and repayment, CreditEase Pratt & Whitney Company does not participate in capital circulation, does not charge interest or earn spreads, and only charges intermediary consulting fees. Yixin Puhui Fuqing Branch, managed by appellant Lin Moujia, only serves as a bridge between the borrower and the lender Tang Moujia and provides intermediary services. The original judgment defined the business model and business behavior of "Yixin Pratt & Whitney Company" as the object of criminal law, which had no legal basis. The procurator of Fuzhou Municipal People's Procuratorate, who appeared in court to perform his duties, has no clear opinion on the "P2P" model in this case, which is prohibited by laws and regulations and adopted by our hospital. The original judgment found that the appellant Lin Moujia's crime of illegal business operation was unfounded in the law, and our court should correct it.
In this case, the people's court tends to think that the "intermediary business" of P2P platform itself does not belong to the traditional banking business, that is, any of the creditor's rights business, asset business and intermediary business. In other words, the intermediary business of P2P platform itself does not violate the mandatory provisions of the state.
However, whether providing "credit enhancement service" violates criminal law in judicial practice has not been supported by open channels, and it needs to be further determined at the regulatory level, judicial level and even legislative level.
In addition, according to the information available through open channels, the P2P services adhered to or actually operated by successful P2P platforms at present generally include "information services", excluding some joining services.
For example, as two P2P companies selected in the 20 15 "Top Internet Enterprises in China 100" list (jointly released by internet society of china and the Information Center of the Ministry of Industry and Information Technology in Beijing):
The business scope of Renren Lending Renren Lending Business Consultant (Beijing) Co., Ltd. is: "Internet information service; Economic and trade consultation; Investment consulting; Technology extension service ";
The business scope of lufax Shanghai Lujiazui International Financial Assets Trading Market Co., Ltd. is: "R&D of financial products, portfolio design, consulting services, ..."; Information services in the second category of value-added telecommunications services (Internet information services only), ... "
In addition, as the first person in the P2P industry in China and a stickler for the essential business of P2P, the business scope of Shanghai Paipai Loan Financial Information Service Co., Ltd. is: "Financial information service, technology development, technology consultation, technology transfer, computer system integration, software and hardware development and sales, data processing service, e-commerce (not allowed to engage in value-added telecommunications and financial services), ..."
Combining the above cases and the business scope information obtained from public channels, it is inevitable that the essence of P2P industry is financial information service and lending intermediary service; On the other hand, as far as pure P2P essential business is concerned, it does not constitute the crime of illegal business operation.
crime of illegal absorbing public deposits
As far as the crime itself is concerned, there is a certain concurrence between the crime of illegally absorbing public deposits and the crime of illegal business operation, that is, the crime of illegally engaging in banking business without approval is suspected of illegal business operation. In our country, any unit or individual who engages in banking business illegally without approval will violate our criminal law and constitute the crime of illegal business operation. And absorbing public deposits is a kind of banking business. Therefore, if the P2P platform absorbs funds for the public and establishes a fund pool, it not only violates the crime of illegal business operation, but also violates the crime of illegally absorbing public deposits.
In the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund-raising, there are the following provisions:
The act of absorbing funds from the public (including units and individuals) in violation of national financial management regulations, which meets the following four conditions at the same time, shall be deemed as' illegally absorbing public deposits or absorbing public deposits in disguised form' as stipulated in Article 176 of the Criminal Law, except as otherwise provided by the Criminal Law:
(a) without the approval of the relevant departments according to law or in the form of borrowing legal business to absorb funds;
(two) through the media, promotion meetings, leaflets, mobile phone messages and other means to promote to the society;
(3) Commitment to repay the principal and interest or pay the return in the form of currency, material object or equity. In a certain period of time;
(four) to absorb funds from the public, that is, the social unspecified objects.
It is not illegal or disguised to absorb public deposits by absorbing funds from relatives, friends or units for specific targets without publicity to the society.
At present, most P2P platforms are undoubtedly not qualified to absorb public deposits; Secondly, in order to run its own business, the platform will inevitably "publicize to the public", because information disclosure and * * * sharing are the vitality of P2P platform. Therefore, according to the above judicial interpretation, on the one hand, the P2P platform itself has constituted some characteristics of the crime of illegally absorbing public deposits according to its own business characteristics; On the other hand, whether P2P platform commits a crime depends on whether it absorbs and promises to repay the public. Accordingly, as a network financing platform, the nature of P2P platform determines that it often wanders on the edge of "illegally absorbing public deposits".
Therefore, if the platform cannot be independent of both borrowers and borrowers, but collects funds to build a pool of funds, looking for borrowers, and promises certain income at the same time, it constitutes "absorbing deposits and lending" to a considerable extent and is suspected of "illegally absorbing public deposits".
In addition, in many cases, we can see that whether the principal and interest can be repaid and the amount of bad debts have an impact on sentencing, but they have no impact on the nature of the case. That is to say, in judicial practice, regardless of the smooth operation of funds, if the P2P platform of "deposit-taking and loan-lending" disturbs the financial order and constitutes four conditions for judicial interpretation, the platform and its operators may be suspected of "illegally absorbing public deposits".
For example, the following cases can show how the court determines the nature of the case:
(20 14) Shenzhen snail issued Chu Er ZiNo. 147 (platform name: Oriental Venture Capital).
We found that ... after the defendant Deng illegally absorbed public deposits, he paid RMB 22 million from the crime to Shenzhen Hutchison Real Estate Co., Ltd. to buy real estate. ...
The court held that the defendants Deng Mou and Xian Mou violated the national financial management regulations and illegally absorbed public funds, which amounted to a huge amount, and their actions constituted the crime of illegally absorbing public deposits.
(20 15) TZZZZZZZ No.00039 (platform name: Huang Hui Fortune)
We found out that ... after investigation, all the victims were registered on the "Huang Hui Fortune" P2P peer-to-peer lending platform, and the funds were transferred to the account designated by the platform. It is Tao who controls the fund account of the lending platform and dominates the entry and exit of funds. Tao Yixiu lent money to Chen Yugen for interest. ……
We believe that Tao illegally absorbed more than 50.36 million yuan from an unspecified 654 people by establishing a P2P peer-to-peer lending platform, issuing false loan investment targets, and promising high interest returns as bait, which was huge, and caused others economic losses of more than 20 million yuan, seriously disrupting the national financial management order, and his behavior constituted the crime of illegally absorbing public deposits.
(20 15) No.229, Xiangxing Zi Chu (platform name: Heilongjiang Chen Han Wealth Investment Management Co., Ltd.)
It was found through trial that on July 23, 2003, 2065438, the persons involved in the case, Wei Li and Chu (both handled separately), attempted to use the identity of resident Song Moumou to register the company and recruit financial salesmen. Engaging in financial business without the approval of the People's Bank of China, publishing investment and wealth management advertisements in newspapers, and committing to absorb deposits from unspecified people at high interest rates in the form of "P2P" entrusted wealth management, thus making illegal profits.
The court held that the defendants Wang Moumou, Yang Moumou, Zhang Moumou and He Moumou violated the laws and regulations of the state on financial management, colluded with others, and absorbed funds from the public in the form of entrusted financial management, disrupting the state's financial management order. Wang Moumou, Yang Moumou and Zhang Moumou participated in a huge amount of crimes, and their actions have constituted the crime of illegally absorbing public deposits. The criminal facts and charges accused by the public prosecution agency are established.
(20 14) mingxingchuzi No.00259 (platform name: pinghai finance)
It was found through trial that after that, Yan Qinghai used the public funds he absorbed to invest in real estate development and lent them to others.
The court held that the defendant Yan Qinghai violated state regulations and absorbed more than 654.38 billion yuan of public deposits from unspecified people in society in disguise, which was huge and disrupted the financial order. His behavior has violated the criminal law and constituted the crime of illegally absorbing public deposits.
The above-mentioned cases obtained from public channels are mutually corroborated with relevant laws and regulations, which reflects the following characteristics of the crime of illegally absorbing public deposits in judicial practice: whether based on China's legislation or judicial practice, as long as the behavior of illegally absorbing public deposits or absorbing public deposits in disguise is implemented in P2P, and the absorbed funds are used for lending or related investment business, or returned to investors, it may constitute the crime of illegally absorbing public deposits, thus causing considerable criminal legal risks.
Financing fraud
With the first-instance judgment of "Wang Youyi case" landing, P2P platform has once again entered the forefront of public opinion. In this case, the court found through trial that the defendant lent part of the raised funds to two people for practical use at a monthly interest rate of 3% or interest-free (all the money has been returned), and transferred most of the raised funds to invest in futures and stock trading through an investment company without the borrower's knowledge of its repayment ability, up to 20121,* *. After hiding, the defendant continued to invest in futures through Ganteng Investment Company in the name of Song, with a total loss of more than 200,000 yuan from 20 13 1.9 to 2013 April 10. Therefore, the court held that the two defendants used fraudulent methods to illegally raise funds for the purpose of illegal possession, and the amount was particularly huge, which constituted the crime of fund-raising fraud.
Combined with another case, it can be seen that the court pays more attention to the "use of funds" when determining whether the P2P platform constitutes the crime of fund-raising fraud:
(2015) TzzzzzzNo. 00038 (platform: Huaqiang Fortune)
……
The court found that Wu Yihua spent 2.35 million yuan to invest in a forest farm in Chizhou in order to gain the trust of investors. Among the remaining funds, Wu Yihua used to repay the principal and interest of Lin's loan of 4.5 million yuan, and paid the expenses of establishing and maintaining a platform of 6.5438+0.4 million yuan, and the rest was used for Huaqiang Company to operate and repay other personal debts.
……
The court held that Wu Yihua, the defendant in the original trial, and Wu Qiuhong, the appellant, illegally raised more than RMB110900 by means of fraud for the purpose of illegal possession, and the amount was extremely huge, which constituted the crime of fund-raising fraud.
Combining the above two cases, we can draw a conclusion that although there are crimes of illegal fund-raising and absorbing public deposits, the court is more inclined to hold that criminals commit fund-raising fraud when they use funds for personal speculation and debt repayment. Instead of lending or investing on the platform. In other words, if the P2P platform establishes a fund pool and the funds are used for P2P platform business, it is more likely to involve the crime of illegally absorbing public deposits; However, if the platform establishes a fund pool, but the funds are used outside the P2P platform business, it is more likely to involve the crime of fund-raising fraud. At present, the highest legal punishment for the crime of fund-raising fraud is death penalty.
Outside the case, if the crime of fund-raising fraud itself is concerned, the main dividing point between it and the crime of illegally absorbing public deposits lies in the subjective elements of the crime. In other words, the existence of "for the purpose of illegal possession" is an important feature that distinguishes the crime of fund-raising fraud from the crime of illegally absorbing public deposits.
As for what is "for the purpose of illegal possession", there are no clear provisions at the legal and legislative levels at present, but in a judicial interpretation, we can also see two or three articles:
The Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases.
Two, according to the provisions of Article 151 and Article 152 of the Criminal Law, the use of economic contracts to defraud other people's property, the amount is relatively large, which constitutes the crime of fraud.
Where an economic contract is used for fraud, the amount of fraud shall be determined by the actual amount of fraud by the actor, and the amount of the subject matter of the contract can be considered as a sentencing circumstance.
If the actor has one of the following circumstances, it shall be deemed that his behavior belongs to fraud by using economic contracts for the purpose of illegal possession:
(1) Signing a contract with others by the following fraudulent means, knowing that they have no ability to perform the contract or effective guarantee, to defraud a large amount of property and cause heavy losses:
1, fictional subject;
2. fraudulently using the name of others;
3. Using forged, altered or invalid certificates, letters of introduction, seals or other supporting documents;
4. Concealing the real situation and using bills or other settlement vouchers that you know cannot be cashed as the guarantee for the performance of the contract;
5. Conceal the real situation and use collateral and creditor's rights certificates. Knowing that it does not meet the guarantee conditions, as a guarantee for the performance of the contract;
6. Use other deception to make the other party pay money or goods.
(two) after the signing of the contract, absconded with goods, payment, advance payment or deposit, deposit and other property to ensure the performance of the contract;
(three) squandering the goods, payment, advance payment, deposit, deposit and other property that guarantees the performance of the contract delivered by the other party, so that the above-mentioned funds and materials cannot be returned;
(four) using the goods, payment, advance payment, deposit, deposit and other property delivered by the other party to carry out illegal and criminal activities, so that the above-mentioned money and property can not be returned;
(5) Concealing contract goods, payment for goods, advance payment or property such as down payment and security deposit to ensure the performance of the contract, and refusing to return them;
(6) After signing the contract, after defrauding all the payment by paying part of the payment and starting to perform the contract, refusing to pay the remaining payment within the time limit stipulated in the contract or otherwise agreed by both parties without justifiable reasons.
In this judicial interpretation, the Supreme People's Court explained "the purpose of illegal possession" by enumerating. Moreover, from these explanations, we can undoubtedly see that whether the criminal has the internal meaning of crime is inferred from external objective behavior. In the P2P platform crime, we think the above two cases undoubtedly give us some tips on how to use objective behavior to push back.
Accordingly, combined with the above two cases, we believe that when determining whether the P2P platform causes the crime of fund-raising fraud, the trial practice tends to think that:
Whether (1) aims at illegal possession is an important sign that the crime of fund-raising fraud is different from the crime of illegally absorbing public deposits;
(2) For the determination of "for the purpose of illegal possession", the court generally infers from the objective behavior of the criminal;
(3) After the P2P platform absorbs and stores, the funds are not used for P2P business, but the platform operators squander the funds, abscond and use them for criminal acts, which can be considered as "for the purpose of illegal possession" and may constitute the crime of fund-raising fraud.
finally
In the process of P2P platform construction and operation, although it is far from dangerous, for the long-term development and sustainable operation of the platform, a certain legal risk prevention mechanism should be established. Among civil, administrative and criminal legal risks, criminal legal risks are the most important. At present, in order to prevent criminal legal risks, practitioners of P2P platform and P2P industry need to focus on the following three issues:
(1) Simply providing loan intermediation services does not violate the mandatory provisions of laws and regulations, nor will it lead to criminal legal risks;
(P2P platform builds its own fund pool, absorbs a large amount of public funds and promises to return them, which may be suspected of criminal offences;