Absorbing deposits from unspecified social objects is the crime of illegally absorbing public deposits, which refers to the act of illegally absorbing public deposits or absorbing public deposits in disguise, disrupting financial order. The object of this crime is the financial management order of the country, which is objectively manifested in two situations:
First, illegally absorbing public deposits, that is, without the approval of the People's Bank of China, absorbing funds from unspecified social objects, issuing vouchers and promising to repay the principal and interest within a certain period of time.
The second is to absorb public deposits in disguised form, that is, without the approval of the People's Bank of China, it is not allowed to absorb funds from unspecified social objects in the name of absorbing public deposits, but the promised obligations are the same as those of absorbing public deposits, that is, they are all acts of repaying principal and interest.
"Illegal" generally shows that the subject is illegal (the subject does not have the qualification to absorb deposits) or the behavior and content are illegal (such as raising interest rates without authorization to absorb deposits). "The public" refers to unspecified objects, including unspecified individuals and unspecified units.
Chapter 12 of People's Republic of China (PRC) Contract Law (hereinafter referred to as Contract Law) stipulates that private lending contracts based on true meaning are protected by law; 199 1 On July 2, 2008, Article 6 of the Opinions of the Supreme People's Court on People's Courts Handling Lending Cases stipulated that the interest rate of private lending can be appropriately higher than that of banks within the range of more than four times the interest rate of similar loans; 19991the official reply of the Supreme People's Court on how to confirm the validity of the loan between citizens and enterprises stipulates that the loan between citizens and non-financial enterprises belongs to private lending, and it can be considered as valid as long as the meaning of both parties is true. In real life, private lending is very common. Not only do citizens borrow from each other, but enterprises and other organizations raise funds to build houses, build roads or carry out public welfare undertakings. In the process of enterprise restructuring, employees invest in shares. Although these are also reflected in the absorption of funds and the return of interest, especially the loan between citizens is generally agreed to have interest, but it is not illegal, in line with the basic principle of civil law autonomy, and does not require the approval of bank management institutions.
According to the general theory of criminal law, the boundary between the crime of illegally absorbing public deposits and the general private lending disputes, that is, to judge whether a lending behavior belongs to the act of illegally absorbing public deposits depends on whether the actor illegally absorbs funds for unspecified objects in society. However, in judicial practice, there are different understandings of what is "socially unspecified object".
Some people think that the so-called "socially unspecified object" should refer to the behavior of all people, including close relatives (in the sense of civil law), but close relatives of lineal blood relatives should be excluded. Others think that it should refer to people who are unfamiliar with the actors, and relatives and friends should not be included.
To judge whether it belongs to "social unspecified object", we should define its connotation in combination with the way the actor absorbs funds. That is to say, when the actor intentionally points to an unspecified person in society and sends out an invitation (written or oral) to draw funds, as long as anyone makes an offer to provide funds to the actor according to this invitation, the actor has established a fund lending relationship with him. In this case, no matter whether the person who provides the funds knows the actor or not, it can be considered as a "socially unspecified object". If the actor does not invite, but negotiates with the borrower to borrow money alone, it does not belong to withdrawing funds from "socially unspecified objects", regardless of whether the borrower and the actor know each other. Because the original "socially unspecified object" has been transformed into a specific object due to the offer behavior of the actor. In other words, only the behavior of the actor who has an invitation to offer may constitute this crime. The reason for this is the following：
First, it conforms to the legislative intent of this crime. At the beginning, the legislative intent of this crime was to prevent subjects other than banking financial institutions from seizing banking business, and to prevent subjects without abundant capital from carrying out deposit business, which brought too much risk to society. The essential difference between banks taking deposits and general private lending is that banks are invited to provide deposits to unspecified people in society. If the actor sends an invitation to take deposits to unspecified people in society, it may seize the banking business, and because the actor usually does not have enough funds to guarantee, the absorbed deposits will not be cashed;
Second, it meets the constitutive requirements of this crime. The object of this crime is the national financial management order. Only when the actor has an invitation to absorb deposits from unspecified people in society can it pose a threat to the national financial management order, so it needs to be punished.
legal ground
Article 176 Crime of illegally absorbing public deposits Whoever illegally or in disguised form absorbs public deposits and disrupts 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.