Crowdfunding is translated from the English word "Crowdfunding", which literally means large-scale fund-raising or mass fund-raising. It refers to a group of people who make small investments or subsidies for specific projects of individuals or companies for profit or non-profit based on Internet technology or platform.
Based on the different forms of investors' return on investment, crowdfunding financing can be divided into four types: donation crowdfunding, pre-sale crowdfunding, loan crowdfunding and equity crowdfunding.
Legally speaking, donation crowdfunding is a gift contract between investors and project sponsors, which is bound by the relevant provisions of China's Public Donation Law and Contract Law. Pre-sale crowdfunding is to sell specific goods or provide specific services, and the contractual rights and obligations of both parties should be clarified through the project description of the crowdfunding platform. These two kinds of crowdfunding are essentially different from the intertemporal allocation of funds. Therefore, as far as "fund crowdfunding" in the sense of Internet finance is concerned, it mainly refers to loan crowdfunding (that is, P2P) and equity crowdfunding.
Second, the legal definition of P2P and equity crowdfunding.
According to the Guiding Opinions on Promoting the Healthy Development of Internet Finance issued by the People's Bank of China and other ten departments, this opinion demarcates the legal boundary between P2P and equity crowdfunding in principle.
1. The definition of equity crowdfunding is "open" and "small". The ninth definition of this opinion: Equity crowdfunding mainly refers to the activities of publicizing small equity financing through the Internet.
2. Equity crowdfunding must be carried out through the platform of equity crowdfunding financing institutions. The ninth definition of this opinion: Equity crowdfunding mainly refers to the activities of publicizing small equity financing through the Internet. Equity crowdfunding must be carried out through the platform of equity crowdfunding intermediaries.
3. Equity crowdfunding financiers should be small and micro enterprises. Article 9 of this opinion clarifies that the financing party of equity crowdfunding should be small and micro enterprises, and should truthfully disclose key information such as business model, business management, finance and capital use to investors through equity crowdfunding intermediaries, and must not mislead or defraud investment.
4. Equity crowdfunding is supervised by the CSRC. Article 9 of the Opinions clarifies that the equity crowdfunding business is supervised by the CSRC.
5. The legal nature of 5.P2P network loan is defined as private lending.
Article 8 of the opinion defines that personal peer-to-peer lending refers to direct lending between individuals through the Internet platform. Direct lending on the personal peer-to-peer lending platform belongs to the category of private lending, which is regulated by the Contract Law, General Principles of Civil Law and other laws and regulations as well as relevant judicial interpretations in the Supreme People's Court.
6.P2P platform is defined as information intermediary, and credit intermediary is strictly excluded.
Article 8 of this opinion clarifies that individual peer-to-peer lending should adhere to the platform function and provide intermediary services such as information exchange, matchmaking and credit evaluation for investors and financiers. Personal peer-to-peer lending institutions should clarify the nature of information intermediary, mainly providing information services for direct lending by borrowers and borrowers, and not providing credit enhancement services or illegal fund-raising.
7. Network microfinance is the business of microfinance companies, not the business of P2P platform.
Article 8 of this opinion defines online micro-loans as micro-loans provided to customers by Internet companies through their holding micro-loan companies. Network microfinance should abide by the existing regulations of microfinance companies, give full play to the advantages of peer-to-peer lending, and strive to reduce the financing costs of customers.
8.P2P and online microfinance are supervised by CBRC. Article 8 of the opinion defines that peer-to-peer lending includes personal peer-to-peer lending and online microfinance. P2P loan business is supervised by China Banking Regulatory Commission.
Three, P2P and illegal fund-raising legal provisions
20 1 01/the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising stipulates in Article1:"Whoever absorbs funds from the public (including units and individuals) in violation of national financial management laws and meets the following four conditions at the same time, unless otherwise stipulated in the Criminal Law, It should be recognized as "illegally absorbing public deposits or absorbing public deposits in disguise" as stipulated in Article 176 of the Criminal Law: (1) absorbing funds without the approval of relevant departments according to law or borrowing legal business forms; (two) through the media, promotion meetings, leaflets and other dissemination; (3) Commitment to repay the principal and interest or pay the return in the form of currency, material object or equity. In a certain period of time; (4) Absorbing funds from the public, that is, unspecified social objects. " According to this judicial interpretation, the crime of illegally absorbing public deposits should have four characteristics: illegality, openness, seduction and sociality. Here, the "social public" in the criminal law is interpreted as "social unspecified object", and "relatives, friends or units that absorb funds for a specific object do not illegally absorb or absorb public deposits in disguise.
P2P, a new business model, is actually a trading model for borrowers to raise funds from the public. P2P network loan has the nature of illegal fund-raising: first, its transaction nature is borrowing, with the agreed repayment of principal and interest, and the fund-raising nature of the transaction is clear; Secondly, because the P2P network platform is open to the public, there is no qualification examination for investors (lenders). No matter whether the borrower and lender reach a one-to-one or one-to-many transaction, it will not affect the nature of the loan for the public. Since the nature of P2P online lending is fund-raising, it seems that the borrower should be required to obtain approval according to the regulatory requirements for fund-raising. However, in practice, it is obviously absurd to require borrowers to fulfill the licensing procedures for public fund-raising, because each borrower's loan amount is very small. Therefore, the state did not require the borrower to fulfill the licensing procedures, but only put forward regulatory requirements for peer-to-peer lending.