Crime of illegally absorbing public deposits. The first criminal legal risk that crowdfunding may encounter in China is that it may violate the crime of illegally absorbing public deposits stipulated in the criminal law. The crime of illegally absorbing public deposits refers to the act of illegally absorbing public deposits or absorbing public deposits in disguised form in violation of national financial management regulations, disrupting financial order. The remarkable characteristics of illegally absorbing public deposits are: illegally absorbing funds from an unspecified public without the approval of the People's Bank of China for the purpose of illegally occupying funds, promising returns, and ultimately causing economic losses.
Legal basis:
Article 4 of the Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities issued by the State Council 1998 (hereinafter referred to as the Measures) stipulates that the illegal financial business activities mentioned in these Measures refer to the following activities without the approval of the People's Bank of China:
(1) illegally absorbing public deposits or absorbing public deposits in disguised form;
(2) illegally raising funds from unspecified objects in any name without legal approval;
(three) illegal loans, discounted bills, borrowing funds, trust and investment, financial leasing, financing guarantee and foreign exchange trading;
(4) Other illegal financial business activities identified by the People's Bank of China.
The illegal absorption of public deposits mentioned in the preceding paragraph refers to the activities of absorbing funds from unspecified social objects without the approval of the People's Bank of China, issuing certificates and promising to repay the principal and interest within a certain period of time; The term "absorbing public deposits in disguised form" as mentioned in these Measures refers to the activities of absorbing funds from unspecified social objects without the approval of the People's Bank of China, but with the same nature as absorbing public deposits.
Article 176 of the Criminal Law, whoever illegally absorbs public deposits or absorbs public deposits in disguised form, thus disrupting the financial order, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan. If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.
Crime of fund-raising fraud. The second criminal legal risk that crowdfunding may face in China is that it may violate the crime of fund-raising fraud stipulated in the criminal law. This crime is more serious than the crime of illegally absorbing public deposits. The crime of fund-raising fraud refers to the act of illegally raising a large amount of funds for the purpose of illegal possession, which violates relevant financial laws and regulations, disrupts the normal financial order of the country and infringes on the ownership of public and private property.
Legal basis:
Article 192 of the Criminal Law, whoever illegally raises funds by fraudulent means for the purpose of illegal possession, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated property.
For debt crowdfunding, it is most likely to commit the above two kinds of illegal fund-raising crimes. If a large amount of funds are absorbed through the fund pool for the platform to use or lent to others to obtain high interest, this kind of debt crowdfunding has great legal risks. Once the criminal filing criteria are met, it may be suspected of illegally absorbing public deposits. If the fictional project of debt crowdfunding uses the absorbed funds for other purposes or squanders them, or absconds with the money, this kind of debt crowdfunding is suspected of fund-raising fraud. At present, some P2P runners have been put on file for investigation by the judicial authorities for fund-raising fraud.
(digression)
The difference between the crime of illegally absorbing public deposits and the crime of fund-raising fraud
The difference between the two is mainly manifested in the subjective intention of the crime. The crime of fund-raising fraud is the subjective intention of the actor to illegally occupy unspecified public funds permanently by fictional facts and concealing the truth. The perpetrator of the crime of illegally absorbing public deposits only temporarily occupies the investor's funds, and the perpetrator promises and intends to repay the principal and interest.
1, from the purpose and purpose of raising funds, if the purpose of raising funds from the public is for production and operation, but in fact all or most of the funds are also used for production and operation, it is more likely to be convicted of illegally absorbing public deposits; If the purpose of raising funds from the public is for personal profligacy, or to repay personal debts, or if a unit or individual is robbing Peter to pay Paul, it is more likely to be convicted of fund-raising fraud.
2. Judging from the economic capacity and operating conditions of the unit, when raising funds from the public, if the unit's business is normal and its economic capacity and repayment ability are strong, it is more likely to commit the crime of illegally absorbing public deposits; If the unit itself is a shell company, or it is insolvent and has no normal and stable business, it is more likely to raise funds for fraud.
3. Judging from the consequences, if all or most of the illegal fund-raising funds are not returned before the incident, causing great economic losses to investors, it is more likely to be convicted of fund-raising fraud. If all or most of the illegal fund-raising funds have been returned before the incident, there is little room for the crime of fund-raising fraud, and it should generally be convicted of illegally absorbing public deposits.
4. Judging from the ability to return after the incident, if the perpetrator has the ability to return after the incident and actively raises funds and actually returns all or most of the funds, he may be convicted of illegally absorbing public deposits; If the perpetrator does not have the ability to return after the crime and does not actually return all or most of the funds, it is possible to identify the crime of fund-raising fraud.
The difference between the crime of fund-raising fraud and general fund-raising disputes mainly lies in:
(1) The purpose of this crime is illegal possession and fund-raising, while the purpose of fund-raising in general fund-raising disputes is often for production and operation, and there is no illegal possession;
(2) Different methods. The crime of fraud is adopted in this crime, while the crime of fraud is generally not adopted in fund-raising disputes.
In addition, the definition and characteristics of illegal fund-raising.
There is no clear stipulation about the crime of "illegal fund-raising" in China's criminal law. Generally speaking, the crime of illegal fund-raising is mainly the crime of illegally absorbing public deposits or the crime of absorbing public deposits in disguise.
Illegal fund-raising is fund-raising without the approval of relevant departments according to law, including fund-raising without approval authority; The department with the power of examination and approval ultra vires to examine and approve fund-raising, that is, the fund-raiser does not have the qualification of fund-raising subject and promises to repay the principal and interest to the investor within a certain period of time. The form of debt service is mainly currency, but there are also physical and other forms; Raise funds from unspecified objects in society. The "unspecified object" here refers to the public, not a specific minority; Cover up the essence of illegal fund-raising in a legal form.
Illegal fund-raising mainly shows the following characteristics:
1, without the approval of relevant departments according to law, including fund-raising without the approval of departments with approval authority; The department with the power of examination and approval ultra vires to approve fund-raising, that is, the fund-raiser does not have the qualification of fund-raising subject.
2. Promise to repay the principal and interest to investors within a certain period of time. Debt service is mainly in the form of money, but there are also physical and other forms.
3. Raise funds from unspecified social objects. The "unspecified object" here refers to the public, not a specific minority.
4. Cover up the essence of illegal fund-raising in a legal form. In order to cover up their illegal purposes, criminals often sign contracts with investors (victims) and pretend to be normal production and business activities in order to maximize their ultimate goal of defrauding funds.
Definition and characteristics of crowdfunding
Crowdfunding refers to a financing method that project sponsors use the characteristics of the Internet and social networks to mobilize the public's strength, concentrate the public's funds, capabilities and channels, and provide necessary financial assistance for small enterprises, entrepreneurs or individuals to carry out an activity or project or start a business. Compared with traditional financing methods, the essence of crowdfunding lies in small amount and large amount. The financing threshold is low, and whether it has commercial value is no longer the only criterion, which opens up a new path for the financing of new companies.
The difference between crowdfunding and illegal fund-raising
Before explaining the difference between the two, let's popularize the basic knowledge of crowdfunding. According to the current international standards for crowdfunding, it is mainly divided into the following four categories:
The following will explain the relationship and differences between the four crowdfunding models and illegal fund-raising in turn:
1, debt crowdfunding
(1) At present, the financial management-fund pool model is quite common, that is, some P2P peer-to-peer lending platforms design the loan demand as a wealth management product and sell it to lenders, or collect funds first and then find borrowers, so that the lenders' funds can enter the intermediate account of the platform and generate a fund pool. Under this model, the platform is suspected of illegally absorbing public deposits.
(2) The risk of illegal fund-raising caused by unqualified borrowers. That is to say, some P2P peer-to-peer lending platform operators failed to fulfill their obligation to verify the authenticity of borrowers' identities, failed to find out in time or even acquiesced that borrowers posted a large number of false loan information (also known as loan targets) on the platform in the name of multiple false borrowers, raised funds from unspecified majority to invest in real estate, stocks, bonds, futures and other markets, and some directly lent illegally raised funds at usury to earn spreads. These borrowers are suspected of illegally absorbing public deposits.
(3) Typical Ponzi scheme. That is to say, some P2P peer-to-peer lending platform operators issued false high-interest loan targets to raise funds. In the early stage, they adopted the Ponzi scheme mode of borrowing the new and returning the old, and raised a large amount of funds for their own production and operation in a short time. Some operators even absconded with the money. This model is suspected of illegally absorbing public deposits and fund-raising fraud.
Bond crowdfunding has been clearly defined as the regulatory scope of the CBRC. At present, the main regulatory interpretation is: "It is clear that the platform itself may not provide guarantees, may not collect funds to engage in fund pools, may not illegally absorb public deposits, and may not implement fund-raising fraud. Establish a third-party custody mechanism for platform funds. The platform does not directly handle the collection of client funds, nor does it have the right to use the funds entrusted by third parties without authorization, so that creditor crowdfunding can return to the intermediary nature of matching. "
Crowdfunding of creditor's rights should fulfill the obligation of auditing to a certain extent, and make full information disclosure and risk warning for both parties. For lenders, they should not excessively pursue loan returns with high interest rates, but should comprehensively consider interest income and capital risks and make rational investment choices. In practice, many borrowers use high interest rates as bait to absorb a large amount of funds, knowing that the interest rate is too high to repay, and directly abscond, "playing missing"; There are also some borrowers whose original intention is to finance their business, hoping to repay the loan after the business is profitable. However, the abnormally high interest cost forces them to invest in high-risk and high-return industries. Once the investment fails, the capital chain will break, resulting in the lender losing everything.
2. For equity crowdfunding
The most likely crime involved in equity crowdfunding is the crime of issuing stocks without authorization in the crime of illegal fund-raising (in a broad sense, illegal fund-raising is defined in the judicial interpretation of the Supreme Court on hearing illegal fund-raising and belongs to the crime of illegal fund-raising). There are two red lines that can't be touched, one is the public (the number is not limited because it involves unspecified people), and the other is more than 200 people (although some unlisted public companies have more than 200 shareholders, they are all caused by special reasons, in principle.
Looking at equity crowdfunding, if an attractive model is adopted, it must be open or more than 200 people, which may directly violate the crime of issuing stocks without authorization. Some equity crowdfunding takes an innovative and conservative approach. Investors who adopt real-name authentication are limited to specific investors and are not external. Then they talk one-on-one offline, and then make equity investment in the form of partnership funds. However, this method is based on how to understand "openness" and "non-specificity". As a crowdfunding regulator, the CSRC is still under investigation.
3. Reward crowdfunding
If the operation is standardized, the qualification examination of project sponsors is strict, and the supervision of raised funds is strict, this mode adopts the pre-sale and group purchase mode, which is a relatively safe crowdfunding mode at present and will not violate the red line of illegal fund-raising. Of course, some false return crowdfunding implemented by this model may be suspected of fund-raising fraud in illegal fund-raising.
4. Used for charity crowdfunding
If we standardize the operation, engage in charity or dream help, there is no legal obstacle. On the contrary, if this is used to commit fraud, it may be suspected of fund-raising fraud in illegal fund-raising crimes.