The core point of this article is that even if the illegal fund-raising activities are obviously disproportionate to the scale of fund-raising, as long as there is not enough positive evidence (such as profligacy, evasion, etc.) leading to the presumption of guilt, otherwise, according to the Interpretation of the Supreme Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund-raising (hereinafter referred to as the Interpretation), the perpetrator cannot be directly presumed to have the purpose of illegal possession.

Item (1) of the second paragraph of Article 4 of the Interpretation is a veritable "evil law", or at least it has been disguised as "evil law" by judicial organs at all levels intentionally or unintentionally in practice.

Article 4 of the Interpretation:

In any of the following circumstances, it can be considered as "for the purpose of illegal possession":

(1) The raised funds are not used for production and business activities, or are obviously out of proportion to the scale of the raised funds, so that the raised funds cannot be returned;

(two) wantonly squandering fund-raising, so that the fund-raising can not be returned;

(3) fleeing with funds;

(4) The funds raised are used for illegal and criminal activities;

(5) Evading, transferring funds, concealing property or evading the return of funds;

(six) concealing or destroying accounts, or engaging in fake bankruptcy or bankruptcy to escape the withdrawal of funds;

(seven) refused to account for the whereabouts of funds, to escape the return of funds;

(eight) other circumstances that can be identified as the purpose of illegal possession.

? According to the subjective purpose of illegal possession, the crime of illegal fund-raising can be divided into the crime of fund-raising fraud and the crime of illegally absorbing public deposits. The purpose of illegal possession is an indispensable component of the crime of fund-raising fraud. The identification of "illegal possession purpose" in the crime of fund-raising fraud should be based on the subjective psychological state of the actor before the act, the use of funds by the actor and the attitude of the actor towards returning funds.

In actual judicial practice, it is necessary to use presumption to identify the purpose of illegal possession, but it can only be used if it cannot be judged by using the existing criminal proof standards, and it cannot be relied on and expanded indefinitely. It is necessary to grasp the presumption rules of criminal law on the purpose of illegal possession. As long as the behavior of fund-raisers conforms to the behavior pattern of judicial presumption, it is not necessary to identify the purpose of illegal possession.

"The purpose of illegal possession" is a subjective state, which can be inferred through objective behavior. However, this presumption should conform to the basic rules of experience and reasoning logic, and there should be enough positive evidence to trigger the presumption of guilt, otherwise it will be mechanically and objectively blamed.

Sadly, in judicial practice, the mechanical application of the first paragraph of Article 4 has become a judicial norm. Limited by the "you know" business environment, a large number of private entrepreneurs are caught in the quagmire of usury. While banning all their possessions and even their freedom and life, they are striving to promote project construction and financing new construction. Whether they are guilty or not depends entirely on whether they can win the bet. It is extremely sad that there is only factual judgment (and factual judgment based on presumption of guilt afterwards) without any value judgment.

Under the cause of the crime of fund-raising fraud in the judgment document network, the case search was carried out with the keywords of "disproportionate" and "borrowing the new and returning the old", and the conviction rate was at least 90%. Among them, a large number of real private entrepreneurs are carrying heavy burdens. They don't even care about the fundraiser. Just because of the pressure of the capital chain, it was forced into the mire of borrowing, and finally it was presumed that it had the purpose of illegal possession according to the first paragraph of Article 4, which was identified as the crime of fund-raising fraud.

Of course, there are also many brave judgments. Let's pay tribute to this bravery.

? 1.(20 16) Xiang 1 1No. 194: fund-raising fraud case.

Basic case: Defendant Yang Xiaowu lied that he was engaged in timber business on the grounds that he was able to repay it for free, and used the high interest rate of more than 3 points per month as bait to defraud the victim140,000 yuan130,500 yuan by means of partnership investment and direct loan.

Referee's gist: If funds are used for business activities and high interest and dividends are paid to borrowers and investors at the same time, it should not be considered as illegal possession of funds.

The original judgment: Yang Xiaowu did engage in wood and chip business before and after financing in the form of high-interest loans and investment dividends. Borrowers and investors also know that Yang Xiaowu is engaged in wood and chip business, and Yang Xiaowu borrows money on the grounds of engaging in wood and chip business, without fabricating facts or using fraudulent means. After the financing, Yang Xiaowu did not squander the raised funds, but used the funds for business activities and paid high interest and dividends to borrowers and investors at the same time. He did not illegally possess the fund-raising funds, which did not meet the constitutive requirements of the crime of fund-raising fraud.

Two. (20 16) The final word of Shaanxi punishment 18 1: Yu Fumin's fund-raising fraud case.

Basic case: The defendant set up a company with others, using the high interest as bait to defraud the public to sign a loan agreement with them and raise funds from the public. Only a small part of the funds raised are used for business operations, and most of the funds are used for "borrowing the new and returning the old".

Referee's gist: if the destination of fund-raising funds is clear and there is no act of concealing property, it cannot be simply presumed to have the purpose of illegal possession.

The original judgment: After investigation, the fact that Shihai Company illegally raised funds was true, but the evidence that Shihai Company was found to be fraudulent and had the purpose of illegal possession was insufficient. According to the existing evidence in this case, Shihai Company and its supervisor Yu Fumin should be found guilty of illegally absorbing public deposits according to law.

Three. (20 16) No.5, No.02 Punishment of Anhui Province: fraud case of raising funds.

Basic case: The two defendants invested in a limited company, and defrauded the victims of more than 7 million yuan on the grounds that the company needed capital turnover for its operation, with the lure of higher bank interest. 2. The defendant used the defrauded funds to purchase real estate, repay the loan principal and interest and lend them to others at high interest rate. After investigation, the total amount of funds raised by the two defendants for purchasing real estate and lending to others was greater than that raised by the public prosecution agency. In this case, the whereabouts of fund-raising funds are clear, and the defendant does not have any behavior such as concealing property.

Referee's gist: The destination of fund-raising funds is clear, and if there is no evidence to prove the existence of concealing property, it cannot be simply presumed to have the purpose of illegal possession.

The original judgment: The appellant violated the national financial management system and illegally raised more than 7 million yuan from the unspecified public, which was huge. Their actions constitute the crime of illegally absorbing public deposits, and they are all crimes of * * *. There is no evidence to prove that Gao intentionally and illegally possessed the fund-raising funds. The original judgment found that both of them constituted the crime of fund-raising fraud.

Four. (20 16) No.01402: Yang Zhen fund-raising fraud case.

Basic case: The defendant illegally raised funds from the victim on the grounds that the company needed funds to carry out business such as bank bridge crossing, real estate mortgage and enterprise certification, and used high interest as bait. By the time of the crime, most of the money had not been returned. The court of first instance found that the funds used for production and business activities after the defendant raised funds were obviously disproportionate to the scale of fund-raising, and his behavior constituted the crime of fund-raising fraud. After the review of the second instance, it was considered that the defendant had repaid some of the victims, and there was no act of squandering funds and absconding with money.

Referee's gist: Even if the funds actually used for production and business activities after fund-raising are obviously out of proportion to the scale of fund-raising, there is no act of squandering funds and absconding with fund-raising funds, and there is evidence to prove that they have been repaying the victims, it cannot be presumed that they have the purpose of illegal possession.

Judgment of the original trial: Appellant Yang Zhen argued that most of the funds absorbed by him were transferred to Xu, and Xu was transferred to Xu Yunlong for stock and futures trading, and some of them were used for real estate mortgage business. Although this excuse is different from the amount of bank flow between Yang Zhen and Xu's bank card ascertained by the public security organ, the bank flow objectively proves that there is indeed a capital exchange between Yang Zhen and Xu. Combined with the fact that Yang Zhen has repaid some victims, there is no evidence to prove that he has squandered funds and fled with fund-raising funds. According to the principle of benefiting the defendant, the appellant Yang Zhen should not be deemed to have the purpose of illegal possession, but the appellant Yang Zhen should be deemed to have violated the national financial management regulations and absorbed funds from unspecified social objects.

The first final judgment of Buddhism and France V (20 14) No.398: Huang Wansha and Huang Chaohua's fund-raising fraud case.

Basic case: The two defendants set up a company, in the name of investing in digital trade network advertising space projects, lured unspecified social objects to invest and took away the investment funds by means of high returns, organizing tours and holding lectures. The defendant did not use the investment money for actual investment, but used it to pay the weekly income of investors, the commission of other criminals, the daily expenses of the company, wages, activity funds, etc.

Referee's main points: If the project is not fictitious, and the project itself is profitable, and the defendant has not squandered or hidden property, it cannot be presumed that it has the purpose of illegal possession.

The original judgment: 2. The appellant joined the project based on the broad development prospect of …, and according to the rules formulated by …, the project may also be profitable. Therefore, judging from the background and purpose of Huang Wansha's establishment of Peng Ying Shunde Branch at that time, it is not enough to conclude that the second appellant has the purpose of illegally occupying the victim's investment funds.

After the establishment of the company, the funds that Huang Wansha attracted from the victims were not used for profligacy, but mostly used for project operation, including paying employees' salaries, paying investors' returns and organizing related activities. From the common sense analysis, Huang Wansha needs to pay for the right to use the advertising space in the business opportunity area, and this part of the cost should also be included in the project cost. Therefore, from the perspective of funds, it is not enough to prove that the two appellants have the purpose of illegally occupying investment funds.

The appellant Huang Wansha continued to pay the investors' income on 2010/010, which shows that she is also trying her best to recover the victims' losses, and further shows that she has no subjective purpose of illegally occupying the investment funds.