In the past few years, financial innovation has been booming, and Internet + finance has caused many illegal fund-raising cases. Recently, cases in which illegal lending constitutes illegal business crimes have become mainstream, and there is a tendency to "expand the criminal circle" in judicial practice. How to determine the difference between private lending and illegal lending deserves in-depth study. According to the "Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Lending" issued by the "Two Highs and Two Ministries" on October 21, 2019 (hereinafter referred to as the "Opinions"), violations of national regulations, without approval from the regulatory authorities, or exceeding the scope of business are prohibited. For the purpose of profit-making, regular loans are issued to unspecified objects in society, disrupting the order of the financial market, and if the circumstances are serious, they will be convicted and punished for the crime of illegal business in accordance with the provisions of Article 225 (4) of the Criminal Law. In order to accurately grasp the scope of illegal lending behavior constituting the crime of illegal business, combined with the personal experience of the case by Sajie's team, this article will discuss the object requirements of illegal lending behavior constituting the crime of illegal business, that is, how to understand "socially unspecified objects"? Does it include a larger number of people? What about many (such as more than 200 people) specific objects? 1. "Unspecific objects in society" require both "unspecific" and "multiple people". The "Opinions" stipulate that "regularly grant loans to unspecific objects in society" , refers to lending funds in the form of loans or other names to unspecified multiple people (including units and individuals) more than 10 times within 2 years. According to this, "social unspecified objects" refers to "unspecified multiple people (including units and individuals)", which includes two conditions, one is unspecified in scope, and the other is large in number. These two conditions Must have both. The so-called non-specific refers to the possibility of open development under the premise of randomness. As for "many", according to common understanding, more than 3 people are "many", so if there are more than 3 people, it is considered to be many people. Among these two conditions, the non-specificity of the lending object determines the openness of the loan granting behavior. This is an important difference between illegal lending, an illegal financial activity, and private lending. According to Article 4 of the "Opinions", lending funds only to specific objects such as relatives, friends, and internal personnel of the unit does not constitute lending to unspecified objects in society, and should not be regarded as illegal lending. However, in order to prevent perpetrators from illegally lending money to specific objects such as relatives, friends, and internal personnel of the unit, Article 4 of the "Opinions" also clarifies that if one of the following three circumstances occurs, the person shall be deemed to have provided unspecified money to the society when convicted and sentenced. Loans granted to targets: First, loans are granted to unspecified targets through specific targets such as relatives, friends, and internal personnel of the unit. The second is to absorb social personnel as internal personnel of the unit for the purpose of granting loans and grant loans to them. The third is to publicly publicize the loan to the public, and at the same time extend loans to unspecified multiple people and specific targets such as relatives, friends, and internal personnel of the unit. 2. Even if the number of people is large, if the target is specific, it does not fall into the category of "socially unspecified target". In judicial practice, some people believe that as long as the number of loan targets is large, such as more than 200 people, then even if the target of the loan is specific, It should also be identified as an "unspecified social object" and meet the conditions for illegal lending. We believe that this view is untenable. The reasons are as follows. First, according to the "Opinions", "unspecified social objects" refers to "unspecified multiple people". Judging from the literal meaning, "socially unspecified objects" requires meeting the two conditions of unspecified objects and large numbers of people at the same time. Non-specificity means uncertainty and openness. In the case of lending, it means that it is difficult to determine what field, industry, region the lending object belongs to, and the relationship between the actor and the lender. Suppose a company issues loans to high-quality customers provided by affiliated companies. Since the number of high-quality customers is determined, the company's lending behavior is limited to high-quality customers and has no diffusion.

The company does not publicly release loan information, but only negotiates loan matters with the objects on the list. In this case, it cannot be regarded as granting loans to "unspecified objects". Even if there are many customers on the list and the loan amount is huge, it cannot be regarded as illegal lending to unspecified objects in society. This situation is just like a large company extending loans to all internal employees. Even if there are many employees, since the scope of lending is limited to within the enterprise, it does not belong to lending to unspecified objects in society. Second, the relevant provisions of Article 179 of the Criminal Law regarding the crime of unauthorized issuance of stocks, companies, and enterprise bonds cannot be applied by analogy. The reason why the above-mentioned views reach relevant conclusions may be because they apply by analogy to the relevant provisions of Article 179 of the Criminal Law on the crime of unauthorized issuance of stocks, companies, and enterprise bonds.

The literal meaning of issuance is to make bonds, stocks, etc. publicly available to investors through legal procedures. The issuance requirements are public. Providing securities to specific targets is not an "issuance" in itself. However, according to Article 9 of the Securities Law, if there are more than 200 specific targets (except employees who implement employee stock ownership plans in accordance with the law), issuing securities to them is the same. It is a public offering and meets the conditions for the crime of unauthorized issuance of stocks, companies, and enterprise bonds. However, Article 9 of the Securities Law is a special provision made by the law. As for lending, the law does not provide for lending to specific objects. If the total number of people exceeds 200, it also falls under the special category of lending to "unspecified objects in society". Regulation.

Statutory crime and punishment are the soul of criminal law, and the interpretation of criminal law cannot exceed the literal meaning of the law. Since there are no relevant special provisions, the "socially unspecified object" can only be understood according to its literal meaning. Third, the above views are inconsistent with the spirit of the Opinions. The "Opinions" include illegal lending within the scope of punishment for the crime of illegal business operations. On the one hand, it is intended to prevent entities other than banks or other legal financial institutions from carrying out lending business to disrupt market order and occupy the business operations of banks and financial institutions; on the other hand, On the one hand, it is to prevent and combat crime and prevent social chaos caused by the inability of many loan recipients to repay their loans. The issuance of loans to specific targets has little impact on the lending business of banks and other legal financial institutions, and the risks are limited and controllable. Bringing the act of extending loans to specific objects into the scope of illegal lending and punishing them as illegal business crimes will overly expand the scope of criminal law and violate the modesty of criminal law. 3. How to define relatives, friends and internal personnel of the unit? The judgment of relatives should be understood in a broad sense, and the scope includes direct blood relatives of the lender, collateral blood relatives within five generations, and marriage relationships. The ancient system of dividing kinship) has the same scope and is in line with the public's family affection and ethical concepts. The definition of "friend" should be based on the degree of understanding and affection between the two, whether they have formed a relatively stable relationship, and whether they know each other's economy and life. The focus should be to examine whether the daily relationship with the lender is close. If The communication is relatively close and should be identified as a specific object. On the contrary, if there are few contacts in daily life, it is not appropriate to identify it as a specific object. In addition, when determining, the objective reasons for the acquaintance of the lender and the borrower should also be analyzed. If the two parties only get acquainted based on illegal lending and have no intersection except communicating about lending and repayment, they should not be recognized as friends. For the definition of "internal personnel of the unit", the conditions should be examined in the form of whether they are internal personnel of the unit, and the nature, work content and work results of their work within the unit should also be substantively examined. 4. Written at the end: From criminal cases of illegal fund-raising to criminal cases of illegal business operations, the red-line risks for the financial technology industry are changing. Our purpose in this article is to remind former practitioners to beware of the criminal law risks of Article 225 of the Criminal Law. I also want to discuss with the case-handling agencies how to set the threshold for illegal lending and how to interpret the "Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Lending" on October 21, 2019. The criminal law is an important weapon of the country. Use it with caution and sparingly, and keep the bottom line of statutory crimes and punishments.