First, the behavior of this crime is mainly manifested in the following three categories:
1. Illegally raise the deposit interest rate to absorb deposits and disrupt the financial order. Its main performance is: depositors directly set an interest rate higher than the statutory interest rate of the central bank on the deposit certificate delivered to depositors or depositors on the spot. So this method can also be called "reflected in the books".
The deposit interest rate, like the loan interest rate, is an important economic lever for the central government to macro-control the domestic market economy. Under normal circumstances, when the country needs to stimulate and expand the overall consumption of society, it will lower the deposit interest rate. On the contrary, when the country needs to control market consumption and invest more money to expand social reproduction to strengthen social productivity, it will raise the deposit interest rate. Based on this, deposit and loan interest rates are generally set and announced by central banks of various countries. So is China. In China, except the central bank, no other unit or organization, including other financial institutions and even other government agencies other than the central bank, are allowed to raise the deposit and loan interest rates without authorization. Anyone who illegally raises interest rates to absorb deposits and compete for large depositors obviously violates the provisions of Article 47 of China's Commercial Bank Law, and at the same time disturbs the order of financial competition in China. Legal persons should bear criminal responsibility according to law.
2. Disrupting the financial order by raising interest rates in disguise to absorb deposits. The so-called disguised increase in deposit interest rate means that although depositors who absorb deposits do not directly increase the deposit interest rate on the issued certificates of deposit, they solicit deposits by withholding them at the time of deposit, or promising to pay them in one lump sum afterwards, perhaps in the form of other material and economic benefits, so that depositors can "happily deposit" in their banks or other financial institutions after actually obtaining the "benefits" equivalent to increasing deposit interest rates. This method can also be called "not reflected in the books". In practice, there are many specific ways for actors to absorb deposits by raising interest rates in disguise, which are roughly as follows:
(1) illegally absorbing deposits and loans by means of "extracorporeal circulation". "Off-balance-sheet bad cycle", also known as "scale around", usually refers to the illegal business behavior of a lender's bank or other financial institution that does not lend within the lending scale stipulated by the superior bank, but absorbs deposits outside the account and issues loans outside the account. In layman's terms, cardiopulmonary bypass means that whoever can bring me deposits, I will lend all or most of the deposits of this lending scale to whom. This kind of extracorporeal circulation itself, if it "causes great losses", also belongs to the crime of illegal lending of off-balance sheet funds as stipulated in Article 187 of this Law.
(2) Illegally absorbing deposits by fabricating spreads that have been raised without authorization. In this case, in order not to reflect the illegal operation of raising interest rates on the books, depositors usually withdraw a sum of money directly from the account delivered by depositors when they come to deposit, as a spread of interest rates that they have raised without authorization to compensate depositors, thus actually raising the deposit interest rate and attracting depositors to deposit in their own banks or financial units with high interest rates.
(3) engaging in prize-winning savings in society without authorization and illegally absorbing public deposits. Its essence is still to raise the deposit interest rate stipulated by the state in disguise. If the circumstances are serious, it will definitely disrupt the financial order of the whole society.
(4) illegally absorbing deposits by secretly prepaying in kind or prepaying in kind. For example, some financial institutions attract deposits by providing several luxury cars to large depositors; Some people expect to provide XX computers and so on within a certain period of time after deposit.
(5) Illegally absorbing deposits by secretly expecting depositors' long-term right to use their movable and immovable property. For example, some banks provide long-term free housing use rights to large depositors of the bank, and so on.
3. Units that are not qualified to absorb public deposits illegally absorb public deposits and disrupt the financial order. This kind of behavior, whether it is raising the deposit interest rate stipulated by the state or adopting other methods of raising the deposit interest rate in disguise to absorb deposits, is illegal as long as it is engaged in "absorbing public deposits" and constitutes this crime.
This crime is a crime of conduct. As long as the perpetrator illegally absorbs public deposits or absorbs public deposits in disguise, disrupting the financial order, this crime is completed. This also reflects the intention of cracking down on this criminal act and seriously undermining the order of the financial market in legislation.
Two, to distinguish the boundaries between this crime and non-crime, we should consider the following three factors:
1, absorbing the amount of public deposits. If the amount of public deposits is small, it belongs to "the circumstances are obviously minor and the harm is not great". According to the provisions of article 13 of this law, it does not constitute a crime.
2. Is it intentional? If it is not intentional, it does not constitute a crime.
3, whether it violates the provisions of laws and regulations. Those who do not violate laws and regulations do not constitute a crime. If the actor raises interest rates to absorb public deposits within the scope permitted by laws and regulations, it cannot be considered as a crime.
Third, the difference between this crime and fraud:
1, the object of infringement and the object of crime are different. The object of the former is the national financial management system, and the object of crime is public deposits; The object of the latter infringement is the ownership of public and private property, and the object of crime can be any property.
2. Different in objective aspects. The former includes using deception to absorb public deposits, as well as using other methods such as coercion and inducement to absorb public deposits; The latter is only manifested in obtaining property by fabricating facts or concealing the truth.
3. Subjective aspects are different. The former has no purpose of illegal possession; The latter must have the purpose of illegal possession.
4. The main elements are different. The former can be composed of both natural persons and units; The latter can only be composed of natural persons.
Legal basis:
Article 176 of the Criminal Law of People's Republic of China (PRC) Crime of illegally absorbing public deposits 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; 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; 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 and fined.
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.
Whoever commits the acts mentioned in the preceding two paragraphs and actively returns the stolen goods before bringing a public prosecution to reduce the occurrence of damage results may be given a lighter or mitigated punishment.