Logic and the realistic fund-raising fraud criminal regulation

-- Analysis of Zhejiang Dongyang Wu Ying fraud case verdict of law

Zhong Ruiqing

Abstract: the control logic of the existing fraud case of the existence of many problems. These problems in Zhejiang, Dongyang Wu Ying fraud case verdict embodied in.In the three key elements (the use of fraud for the purpose of illegal possession; method; illegal fund-raising, fund-raising) Wu Ying is unable to satisfy the conditions of financial fraud. Find by hard and thorough search, this decision is largely based on logic for illegal fund-raising regulation of the existing criminal law confusion, but also to a certain extent due to illegal fund-raising related legal protection object alienation results.

　With the rapid development of China economy, folk finance gradually surfaced. However, between the folk financial development and the existing financial regulation mode, there is fierce conflict.The existing financial regulation mode, still relies on criminal law, in order to curb (instead of counseling and development folk finance) as the basic target.Zhejiang Dongyang Wu Ying fraud case of the first instance sentence of death, from dependence on criminal law of folk finance the rationality of a new round of controversy. The control logic of the Wu Ying case and review decision behind on our financial supervision mode, establish the new benefit.

　　A basic fact, Wu Ying "fraud"

Wu Ying case involving the fact is not complicated. According to the court, the defendant Wu Ying founded in April 2006 Bense Holding Group Limited, which is 35 yuan per day per million, 40 yuan, 50 yuan ranging from high interest rates or quarterly dividend of 30%, 60%, 80% of the high rate of return on investment, from Yu Yasu, Tang Yaqin, Xia Yaoqin, Xu Yulan and others at raising up to more than 1400 yuan. From May to 2007 2005 years in February, Wu Ying in the name of investment, loans, capital turnover, successively from Lin Weiping, Yang Weiling, Yang Weijiang 11 people illegally raised RMB 77339.5 yuan, used to repay principal, pay high interest, the purchase of real estate, cars and personal consumption, total fraud amounted to 773395000 yuan, and didn't return it. Up to 38426.5 million.

The court thinks, high return Wu Ying's commitment is funding the bait. Wu Ying registered companies, is to hide the fact has a huge debt. Wu Ying also used illegally raised funds to purchase real estate, investment, donations and other methods, the high-profile publicity, trying to create the illusion of a strong economic strength to the public, to defraud the social capital. The court thinks, Wu Ying and Yang Weiling partnership fry futures, but not to Yang Weiling and others to take risks, but to give a fixed return. Yang Weiling et al 3300 million yuan investment in futures speculation, Wu Ying actually lost nearly 50000000 yuan in the circumstances, to conceal the fact that it has huge losses, claims to have profit, pay 1400 yuan of the so-called profit to Yang Weiling and others, and if the purchase of home textile gifts electrical appliances of equal value, are trying to cause the strength the illusion of behavior.

The court thinks, Wu Ying in debt, not the economic strength of the case, still on illegal funds arbitrarily disposal and waste, jewelry such as 2300 million to buy, not for business, but to send people or for mortgage; do not consider their own economic strength, bidding or investment in real estate development, resulting in 14000000 yuan deposit, the deposit is forfeited; with funds donated to 230 million; in the absence of the actual use case, spent nearly 20000000 yuan to purchase a car, which I configure the purchase price of 375 million Ferrari roadster; for these random payment money 1300000 yuan; his gamble at high stakes, profligate, a confession spend 400 million buy clothing, watches, cosmetics, and high-grade entertainment consumption spending up to 6000000 yuan.

Court think, the defendant Wu Ying's actions not only violate the property of others, but also undermines the national financial management order, has constituted the crime of fraud. In view of the defendant Wu Ying fraud amount is particularly huge, causing especially heavy losses to the interests of the state and the people, particularly serious crime, should be severely punished according to law. For the protection of citizen's property is not violated, maintenance of the normal order of financial management, in accordance with the "PRC Criminal Law" article 192 , 199th, fifty-seventh in the first paragraph, the provisions of article sixty-fourth, imposing the death penalty on Wu Ying.

　　Two, the Wu Ying case can constitute the crime of fraud?

Although the court for its decision confidence. However, careful search related provisions, the legal basis for the decision of the Wu Ying case if there is doubt. According to the "criminal law" article 192 , the so-called fraud ", refers to the illegal possession for the purpose of using the means of fraud, illegal fund-raising, large amount" behavior. Accordingly,The crime of fraud has four basic elements, the first isFor the purpose of illegal possession;SecondMethods use fraud;ThirdIllegal fund-raising;FourthA large amount of.Among them, fourth elements according to the amount of funds and failing to return the amount, less controversial. The focus of controversy is the remaining three elements.

In these three elements, "illegal fund-raising" regulation involving elements of funding sources, "to the illegal possession for the purpose of regulation" relates to the money, and "essentials by means of fraud" to obtain funds for regulation.

　　(a) funding Wu Ying behavior is "for the purpose of illegal possession"

This element is always the focus of academic debate. Some even argue that, in view of the elements of fuzzy, not directly to cancel the elements. The core of the problem is, "for the purpose of illegal possession" is subjective and objective, and thus cannot be directly observed through determination, through objective evidence of indirect only presumption.Since it is the presumption, presumption as well as the basis of the presumption of accuracy, will inevitably become the focus of debate.We can examine the existing laws and regulations on the basis of the method of determining the presumption, then discusses the financing behavior whether the elements of Wu Ying.

In the"Some problems of the Supreme People's Court on the fraud case concrete application law interpretation" (method 1996) (No. 32 )In the high court, enumerates four kinds of situations, that can form "for the purpose of illegal possession":

　　(1) carrying a fund-raising run;

(2) spend funds, the funds can not be returned;

(3) the use of funds for illegal and criminal activities, the funds can not be returned;

(4) with other acts of fraud, refused to return the funds, the funds can not be returned.

Obviously,The Supreme Court in four (1996) concluded according to Law No. 32 in the determined, there are many problems, may lead to erroneous inferences.For example,The first case, "carry funds fled",For the specific case carrying amount, the escaped, no specific provision.In China, carrying money situation difference is very big, some obtain funds immediately after the escape, some found insolvent fled after, some will all funds carry fled, some carrying some of the money abscond. If one of these different circumstances treated, is obviously unfair, it was not appropriate.Second kinds of situations, there is the same problem, i.e.Waste amount and unable to return the amount may not equal, therefore, the relationship between spending and unable to return, it may not be all there is causality.In Wu YingIn the case of,The court found that Wu Ying has wasted, even if that was established, the waste amount is only 5300 million, the total amount and financing and did not vary enormous amount.Therefore,Using 5300 million waste to identify all exist "for the purpose of illegal possession", it is a problem.Third kinds of situations, is actually a result instead of inference.In other words, once the use of funds for illegal and criminal activities, and cause the funds can not return, just as there is "subjective purpose of illegal possession".Compared with other cases, according to the results that will inevitably lead to identify the expansion of the scope of. This is because, the objective can not return, and there is no subjective illegal possession for the purpose of possibilities, there is complete.Objective can not return to replace on the subjective purpose of illegal possession, is the use of the power of legal interpretation of criminal law regulation scope expansion.Through this expansion, the same behavior will consist of several crimes, so as to produce a combined punishment for several crimes problem. For example, using funds operating casinos, which also constitutes a crime of fraud and the crime of opening casinos. As forThe fourth case, will be "the purpose of illegal possession" elements and "fraud" elements be confused.If the debtor has returned, and "refused to return the funds", which is actually the by refusing to repayment directly shows the "purpose of illegal possession", so there is no need to repeat the provisions "has other fraud". "With other fraud", it is improper to reduce fraud suspects responsibility. If according to the existing "other fraud, cause funds cannot be returned," just as there is the purpose of illegal possession, and equal to the negative elements of the fraud "the existence necessity of illegal possession crime".

Several years later, in the"Notice of the Supreme People's Court on the national courts in cases of financial crimes' Seminar '" (2001) the method (8 )In the Supreme People's court, lists seven kinds of situations, that can form"The purpose of illegal possession":

　　(1) knowing no return ability and a lot to defraud money;

(2) illegally obtained money and run;

(3) the profligacy to defraud money;

(4) the use of defrauding money is illegal and criminal activities;

(5) to flee, funds transfer, conceal the property, to escape the return of funds;

(6) conceal or destroy, accounts, or make false bankruptcy, false failures, to escape the return of funds;

(7) other acts of illegal possession of funds, refusing to return.However, when dealing with specific cases, for there is evidence to prove that the actor does not have the purpose of illegal possession, not only to the property can not be returned to the crime of financial fraud punishment.

In the seven case, some expressed than 1996 formulation is more accurate, such as second kinds of situations, "illegally obtained funds run", namely, that people get from money abscond, which can show its no intention to fulfill their obligation of payment. But the third one, "profligate defraud money", "wanton" word, quite the value of appreciation. Fifth, six for the new term, also can well reflect the legislative intent. The seventh statements, than 1996 expression much better.However, in fourth, the problems are still the same with 1996 expression, the new first, and there are obvious problems. "Knowing that there is no return ability", requirements on fraud suspects still exists "knowingly" constructive nature.ChangeWords,The term "knowingly" to replace the "presumption presumption for the purpose of illegal possession",But"Knowing that no return ability", not that "for the purpose of illegal possession" more easily."As shown in the case of Wu Ying,In actual operation, "to prove that no return ability", will evolve to actually return as determined according to, lead to impute. As a result, because of luck and borrowing situation, will be identified as fraud.For example, the loan to buy shares in the hope that the stock price doubled, to repay arrears, the results because the bear wiped out, will be considered fraud.Therefore, this constitutes a criminal regulation range of unreasonable expansion.

From the above analysis we can see,To reasonably define presumption "for the purpose of illegal possession" basis, is very difficult. According to the practical case that presumption on the basis of effective, there are more problems. In theThe Wu Ying case, the public prosecutor on the legal basis, is two minutes, which is the first "knowing no return ability and a large number of defrauding money" and third "profligate defraud money". Identified two items, there are problems.

　　Financing behavior of 1. Wu Ying is "knowing no return ability and a large number of defrauding money"?

Whether Wu Ying knowing that no return ability and fund raising, high rates of public prosecution is mainly dependent on the Wu Ying give.When interest rates are the highest even reached the annual interest rate of 400%, most people will think, this is not sustainable. Accordingly, the prosecutor and the court thinks, Wu Yingming know objectively unable to repay high interest debt financing commitment, therefore, Wu Ying's composition "for the purpose of illegal possession".

However,Because the financing mode is not sustainable and that its constitution "for the purpose of illegal possession", it belongs to a kind of objective imputation, because, not a sustainable financing mode, will inevitably lead to some of the money is not returned, the money can not be returned and found in its composition "for the purpose of illegal possession", there is no doubt that the objective imputation.Finally, "to the illegal possession for the purpose of identification", into the determination of a financing mode feasibility, once the mode of financing is not feasible, it can form "for the purpose of illegal possession". This leads to the alienation of "the purpose of illegal possession" of the element.

In fact, a kind of financing mode is feasible or not, depends on various conditions.In advance, as a mode of financing is feasible, very difficult, or even impossible. This is because, the business and finance is always continuous innovation. Many successful commercial operation, was considered to be impossible. Therefore, identifying financial feasibility, finally only to afterwards the mode of cognizance. However, after the identification model is essentially follow the logic of "Losers are always in the wrong.". This evolution is "because you failed, so you know you must fail", this logic is not convincing.

　　2. Wu Ying is "profligate defraud money"?

For if Wu Ying "profligate defraud money", the difficulty that is how to prove the existence of "profligate". By the common language to express the "profligate", is "no money when the money", do not consider the necessity and appropriateness of money. The court finds that the "profligate" behavior, including the purchase of jewelry, automobiles, payment of other people's money and luxury consumption.However, Wu Ying used the funds to buy jewelry, and not so that it belongs to the "profligate", if the value for money, anti can prove its original intention or in "careful investment". Similarly, spent nearly 20000000 yuan to purchase a car, for so-called random payment money 130 yuan, high-grade entertainment consumption cost of 600 million, also must be based on the specific situation to be identified. These behavior whether to belong to "free" payment, according to the specific facts to recognize, and not according to amount to.For example, the court found that Wu Ying is my disposition purchase price 375 million Ferrari roadster, however, media reports have shown that sports car is equipped for the flag of the wedding company. And similarly, payment of money, according to the follow-up reports, and belongs to the payment behavior of developing relationships, which may constitute bribery bribery, but in any case can not constitute a "profligate". In short, so far did not find sufficient evidence to prove that Wu Yinghao did not consider spending the appropriateness and necessity, the so-called "profligate", is untenable.

　　(two) from the Wu Ying behavior whether or not to use the means of fraud

　　In the"Some problems of the Supreme People's Court on the fraud case concrete application law interpretation" (method 1996) (No. 32 )In the high court, the definition of "fraud": refers toThe actor takes the fictitious capital purposes, using false documents and high returns as bait, obtaining funds means.In this definition,"Fictitious capital purposes "," false documents "," a high rate of return for bait "is theThe key point in the.In short, is to raise capital to use false information to encourage investors to make the wrong decision.

So,In the Wu Ying case, prosecutors to prove that Wu Ying has "fictitious capital purposes", with "false documents", "a high rate of return for bait"?

　　Relying on the court evidence, including the following several points: first, "to the tight as bait"; second, false registered companies; third, real estate, investment, donations and other methods with illegally raised funds to purchase, carry out false propaganda, caused it to have strong economic strength illusion to the public, for social capital.

Obviously.The establishment of the first point is not enough.High interest rates can only represent a high return, not directly equivalent to the "bait", in other words, not only because of its promise of high interest, namely that it belongs to the "tight as bait".As described later in this articleWu Ying, attracted is usury capital, the funds provider active direct pursuit of high returns, in other words,Not Wu Ying through high interest to lure these funds, but these funds provider was given only to high interest rates for conditions,Therefore,Interest is the supply and demand of funds agreed conditions,Instead of money demand specially set up fraud method.The second point,Registered companies, cannot be equated with fraud. Because, register the company itself is a matter of fact, in other words, Wu Ying is not the fictional facts.Accordingly, fraud does not exist. Third, real estate, investment, money illegally raised funds to purchase, does not of itself constitute fraud, as long as the fact itself, would not constitute fraud, also cannot constitute a "false propaganda".Only rely on do not exist in fact, fact or fiction, can constitute a false propaganda. Moreover, even if these false propaganda, as long as the investor does not rely on such information as investment decision, it still can not constitute fraud.

　　(three) from the Wu Ying behavior whether to belong to the illegal fund-raising

In the"Some problems of the Supreme People's Court on the fraud case concrete application law interpretation" (method 1996) (No. 32 ), "illegal" refers to"Other organizations or individuals, legal persons, without authority approval, to raise funds from the public behavior".So, what is "to raise funds from the public behavior"? The so-called social public, means that society is not specific objects. 5 "The concept of social not specific objects "to express the meaning, not to the number, but to the financing way and range. In other words,The expression of this concept does not object specific meaning, refers to the funds belong to a kind of open fund, namely, raising people set conditions, and to the public, eligible persons may participate in the.According to the illegal fund-raising is to the issuance of securities, can be divided into "illegal absorption of public funds" and "issuing stocks, bonds". In the former, belongs to public deposits, in the latter, which belongs to the public issuance of securities. In the two case, it is to get the idle funds to the society with the uniform conditions.

However, according to the reportWu Ying from all involved only 11 people, the main providers of funding a total of 7 people, are Lin Weiping, Yang Weiling, Yang Weijiang, Yang Zhiang, Xu Yulan, Luo Huamei, Yang Jun.Among them, only for Wu Ying Lin Weiping to lend a total of 470000000 yuan, accounting for 770000000 of that court funds 61%. ⑥These 7 people actually usury operatorsThe court, have been found to constitute the crime of illegal absorbing public deposits. Part of the testimony of witnesses, Wu Ying to obtain funds from the usury operators, not in uniform conditions, but the one one contact, sometimes through the middle of the. In short,This is an acquaintance of financing mode, and the non - public offering of strangers financing mode mode display:

　　Ye Yisheng.Yang Weijiang phoned me, asked if I had any money, he has a friend named Wu Ying, wanted to borrow money, I say that to see a face...... She came and asked me if I had the money, and said to pay interest, and asked me how much interest, I said two or three points can be, Wu Ying readily promised (Wu Ying investigation files four, P10).

　　Ask:Why do you want more money to lend Wu Ying? Answer: the main is to earn money, another consider themselves a great reputation, I think she is developed, the future can also help me.

　　Ask:Wu Ying wants to borrow some money from you have not said what use? Answer: Wu Ying said is in the hotel, engage in trade (Wu Ying investigation files four, P21).

　　Gong Yifeng.After 2005 years after the Spring Festival, the lunar January, me and Yang Zhiang, Wu Ying three people to the Guangdong Province Guangzhou city to visit a market,...... When Wu Ying said she was going to invest in this market, need to borrow money to us, so I went with her, Yang Zhiang went to Guangzhou, want to confirm that there is no market (Wu Ying investigation files four, P85).

When Wu Ying put forward is to cooperate with US investment, but later I want to give her money from her operation, and upset, so I went to borrow money the way to her (Wu Ying investigation files four, P86).

　　Zhou Zhonghong.She only spoke to do business, my wife and I did not ask her to do what business...... Wu Ying did not say what to do, only to do business...... (Wu Ying investigation files six, P6)

　　Ask:How do you put so much money to her? Answer: I didn't go to the character before work, we want to help her, later can also borrow her platform development, after work I want to have a chance from her panel to do business. So I will give her money (Wu Ying investigation files six, P10). ⑦

　　Zhou Zhongwei Zhou Zhonghongdi.Button after the car, I also asked Chung red, why so much money lent color, also do not charge interest. He said: want to color up, good to get some construction or Engineering (Wu Ying investigation files six, P10).

　　The testimony of witnesses, lend money to Wu Ying, are required to meet Wu Ying this person, sometimes want to have a close business relationship with her, in short, are not based on the Wu Ying set the conditions to determine the financing contract negotiations, but one one. In this condition, that gave Wu Ying the money men belonging to the "public", is obviously far fetched.These people do not belong to the public, but also professional usury operators. They do not wait for a chance to the door, but actively seek opportunities. These features, this concept is not "public" can cover.

According to the above analysis, we can draw a conclusion,In the three key elements (the use of fraud for the purpose of illegal possession; method; illegal fund-raising, fund-raising) Wu Ying, can not meet the recognition conditions, the crime of fraud. Therefore, this decision can not meet the statutory requirements.So, why the court will make such lack sufficient according to judgment? One very important reason, isThe current criminal law has significant defects on fund-raising criminal regulation.In this kind of defect, to crack down on illegal fund-raising activities, the Wu Ying case is difficult to avoid the tragedy.

Three, criminal control logic confusion

As everyone knows.The criminal regulations about the folk financing, set 3 charges of criminal law, the crime of illegal absorbing public deposits, fraud and unauthorized issuance of shares or corporate bonds, corporate crime.There is a big difference between 3 kinds of crime punishment. Among them,The issue of shares or corporate bonds, enterprise or the light crime, is less than 5 years imprisonment or criminal detention, or impose a single office funds illegally raised one percent to five percent of the fine.The crime of illegal absorbing public deposits and secondly, the highest punishment for a period of 10 years(divided into the following 3 years, 10 years two file),Fraud is the heaviest, the highest life imprisonment(divided into 3 files: 5 years, 10 years to life imprisonment).However,3The definition of crimes between, but there is no clear distinction, from crime to crime, there is a huge room for manoeuvre.The crime of illegal absorbing public deposits and issuing stocks or corporate bonds, corporate crime has the possibility of converted crime of fraud in financing. Allegedly,The crime of illegal absorbing public deposits and fraud charges in two "is the difference between a further and step back". "If you spend more than half the total amount of funds, if the fraud, if less than half, mostly set of illegal absorbing public deposits." ⑧

Theoretically speaking, the essential difference between 3 crimes.The crime of illegal absorbing public deposits and issuing stocks or corporate bonds, corporate crime are essentially policy making, the root cause of this crime is the violation of "unauthorized", once approved, obtain the legitimacy and justification.The crime of fraud belongs to natural crime, in violation of this crime because of fraud, whether or not approved, are unfair.In other words, the crime of fraud is essentially still belong to the crime of fraudIt is used, "raising" the new form of fraud. Accordingly,There is a significant difference between the crime of illegal absorbing public deposits, issuing stocks or corporate bonds, corporate crime and the crime of fraud, nonexistent interchangeability. The possibility and swap in the practice of display, the current charges objectively has been misused.

Where is the misuse of the reasons?One important reason is thatThe system of charges of illegal fund-raising the set of existing criminal law major problems exist.Simply put, problems existing charge system is a prominent, classification is not fine, so as not to put all possible cases are covered, in crimin, have to use the existing norms to deal with criminal law is actually not included. In other words,The classification is not detailed enough, the scope for wrongdoing folk financing process specification of existing criminal law is not wide enough, thenThrough the expansion of the existing provisions to the jurisdiction of the way to solve the problem, which led to the breakthrough of the principle of legality, the resulting unfair decision.

Specific words,3 charges existing specifications of illegal fund-raising, the crime of illegal absorbing public deposits, fraud and unauthorized issuance of shares or corporate bonds, corporate crime, only 3 cases, wherein, the crime of illegal absorbing public deposits should only regulation without approval, absorbed in fund safety behavior centralization of capital. The unauthorized issuance of shares or corporate bonds, corporate crime without the approval of the issuance of stocks or bonds, fraud, fraud behavior regulation.

Accordingly,Two kinds of situations not covered under the existing criminal law:The first is a high return to capital for financing purposes, such behavior is not absorb public deposits "due",Because the fund provider is not simply the pursuit of the safety of the funds, but the funds rate of return in the first placeSecond situations are not; various fund-raising process constitute fraud, crime of fraud for example, misrepresentation, fictitious capital purposes, but does not exist "for the purpose of illegal possession".In this condition, the criminal law will have to expand the crime of illegal absorbing public deposits and fraud regulation range, will absorb the pursuit of high returns capital, understood as illegal absorb public deposits, but in this expansion, "savings" concept is alienated, evolved into the "debt servicing" the relationship between the.However, the essential meaning of deposit, but its safety is guaranteed, thus, the rate of return is inevitable in the various funds utilization is the lowest behavior. The in other words, when a fund from the security pursuit to high returns pursuit, the law gives the degree of protection must be reduced.The crime of illegal absorbing public deposits regulation range expansion to the high risk of capital centralized behavior, would unduly restrict the folk financing space, this expansion is not based on.

　　Similarly, in order to regulate all kinds of fraud in the process of raising funds, had toThe expansion of the scope of regulation of the crime of fraud in financing, will be a variety of financing fraud (though not constitute a financial fraud, because there is no financial fraud) forced into the crime of fraud in financing decision, finally caused the law spirit. It is also inappropriate limits the folk financing space, that restriction is no legal basis.

In this context,Wu Ying fraud, is at best financial fraud, in fact is however not approved by the absorption of a high rate of return, because of lack of funds, the criminal law to regulate these two kinds of behavior, in the strictly against the logic, finally chose the charges of fraud. However, innocent heavy sentence, law spirit, Wu Ying not only is a personal tragedy, but also Chinese rule of tragedy.

Let Wu Ying and Chinese law more unbearable reality is, after the sacrifice of Wu Ying, law the default target not only can not be achieved, but also draw further apart. Because without him, reveal the Wu Ying case of reality, has been with the existing laws of presupposition is far from reality. In other words, the real changes have taken place in quietly, andLegal logic, but also dedicated to the 80 in the last century economic reality.

Objects of protection four, changes of economic reality and Alienation: Wu Ying case of first instance verdict social effect

Without doubt.In the past, illegal fund-raising case to protect are the poor, including retired etc..Even 2007 years, in the"Office of the State Council on the legal punishment of illegal fund-raising related issues notice" (SCS electric (2007) No. 34 )In the State Council, think, illegal fund-raising case victim, the majority is "laid-off workers, retired workers". For these people, once cheated, which is equivalent to the most basic survival security would be threatened, therefore, that "can easily lead to group events, and even endanger the social stability" conclusion, since the genus behoove. Accordingly, for these illegal fund-raising behavior, severely and fast processing and decision, it is logical.

However, Wu Ying fraud case reveals the reality, but does not agree with the above hypothesis. In the Wu Ying case, only the 11 loan to Wu Ying, but failed to return the funds as high as 300000000, which shows the simple analogy,Lend money to Wu Ying, presupposition is not law of the poor, but a group of pursuing high return on investment has surplus funds of the rich.If calculated in accordance with the intermediary to provide funds to Wu Ying such as Lin Weiping et al, sources of funding, and so. For example, Lin Weiping from the object to the 71 people, 1 units, illegal absorption of 865150000 yuan of funds, even if direct divided by 72, equivalent to each person (unit) to provide capital of 1000 million, this is not a legal Presupposition "laid-off workers, retirees" can provide.

Media reports,Provide funds to Wu Ying, actually all is usury intermediary, with their high interest from the hands of others to absorb funds, of which a considerable portion, from public officials, and then to higher interest rates, lending to the Wu Ying. In short, this is a network of usury, and Wu Ying is the final part of the network, is usury capital users.In other words,In this usury capitalIn the network, including the fund provider, intermediary and users.When the rise of such a usurious network in the economically developed Yiwu, Dongyang, the law faces dilemma, still like the protection of laid-off workers, retired old man to protect the usury capital provider? Whether we should treat illegal absorb laid-off workers fund user to severely punish usury capital users and usury intermediary?

Theoretically speaking, the usury capital provider cannot and unemployed workers and retired workers put on a par with. This is because,In general, the usury capital required interest bottom line, is two or three points. For adult returns, is 24%~36%. In the case of Ms Wu, the highest rate of return 3 months reached 100%, the rate of return for adult, up to 400%. When the investment return rate to a certain extent, will gradually change the nature of investment. From savings to the gambling, the risk is increased gradually. When the rate of return on investment of 400%, although we can not say that the investment can not recover, but the prospects for recovery decreased gradually, it is a fact.High returns, is supposed to take on more risk as the price. If the borrower that high rate of return is high risk cost, then, he is to take the initiative to assume the corresponding risks.In this case, the law can not use capital safety responsibility, completely let financing bear.This is not required to ensure the gamblers bet casino boss will not be damaged.

In fact,In accordance with the law on usury laws usually, take is similar to treat money like policies, high interest, no protection. In other words, the higher than normal returns, has exceeded the scope of legal evaluation. When investors take part on the grounds that failed to get beyond the loss, this requirement can not get the support of the law.That is to say,Legal thought, usury capital provider itself shall bear part of the risk and liability, but not enjoy similar to the depositor protection as powerful.

　　However, in the case of Ms Wu, the court still follow the laid-off workers, retired elderly people as victims of logic, given a heavy users of funds Wu Ying. But for the usury capital network in the most crucial intermediary, including the biggest money broker Lin Weiping, they are in the crime of illegal absorbing public deposits penalty.If say, is to set up tight as bait,Why is the same as tight as bait for Lin Weiping, it failed to return the amount more than Wu Ying and reached 45367 million yuan, but was sentenced to the crime of illegal absorbing public deposits? The same usury capital network, why the difference is so poor? Such decisions, and at all times and in all countries are contradict. Always, history is the provider and operator condemned usury capital, not condemned usurious capital users.However, in the case of Ms WuConversely, the court condemned usury capital users, and usury intermediary to "the crime of illegal absorbing public deposits" may be to do a quick change.

　　Five, the conclusion

　　Excessive reliance on inappropriate behavior in criminal punishment to regulate civil financing, is a wrong choice of policy:Light could not reach preAnti purpose, heavy then lead to the development of folk financing excessively curbed.Signal criminal penalty overweight conveys is nothing, folk financing is illegal: capital providers should not seek high returns, but should secure the pursuit of funds, in other words, the remaining funds only remaining funds will be deposited into the bank, or the purchase of approved issued stocks, bonds, funds, and not through the folk channels to seek higher returns.If say, this policy in the early stage of economic development, can set up the remaining funds in the known conditions, then in the high-speed economic development, the remaining funds a large increase in condition, it is no longer reasonable requirements.In a highly developed market economy, how to balance between safety and return to capital, has become a profound knowledge, is not appropriate for the law to judge. In other words, the flow of funds, should be made by the capital owner to decide, the law can do, is the requirement of related parties to provide information accurately, ensure that the decision is made in the full grasp on the basis of information. That is to say, the regulation capital users that obligation, is the folk financing control path.In other words,Must be from the substantive regulation, gradually convert technology form control.Only after this conversion, the case of Wu Ying type "gourd monk disorderly sentenced gourd case" tragedy, don't repeat once again.

Notes.

① the argument. See Synonyms at ifeng.com:Http://finance.ifeng.com/opinion/fengping/22.shtmlIn May 4th, 2011 access.

The Zhou Dan: "fraud behaviors identified problems -- the Du Yimin fraud case", and "2010 " folk financing to guide and regulate "Symposium" Financial Law Research Society of Zhejiang Province law, 267th pages.

To spend about 23000000 yuan to buy jewelry, spent nearly 2000 million purchase of a large number of car, spent 4000000 yuan to buy a clothes, watches, cosmetics, and high-grade entertainment consumption spending up to 6000000 yuan.

The "conclusion" Wu Ying case, never ending, load "Chinese business newspaper" in 2010 8 month 29 days.

The State Council 247 orders "illegal financial institutions and illegal financial business activities banned methods" article 4 directly with the "social not specific objects" definition "of illegal absorbing public deposits," people's Bank "China on banning illegal financial institutions and illegal financial business activities related issues notice" (Yinfa [1999] 41 ) is the use of "social not specific objects that the public to raise funds" statement, that the public is equal to the society is not a specific object.

The "Wu Ying behind the public lending" carrier "times weekly", 2009 12 month 24 days.

The witness testimony from Baidu Webpage:Http://hi.baidu.com/bestgroup/blog/item/b5dd36f47d3b7766dcc474d9.html, 2011 May 4th.

The this Shanghai criminal defense lawyer Zhang Peihong's point of view. See Wang Hongliang, Chen Chao: "crime and punishment of Wu Ying: the first and the load", "Sanlian Life Weekly" always the 560 period (2010 January 11 publication).

Peng Bing: the "criminal law" illegal fund-raising activities, load "Tsinghua law" 2009 third.

The in fact, definition and scope of deposits will continue to evolve, see David B.Hexter, That which we called deposit, 26 Business Lawyer69 1970-1971, but its low risk does not change.

"Wu Ying, illegal fund-raising chain during the day under load", "daily of the first finance and economics" in 2009 4 month 17 days.

And of course, one might say, Wu Ying is different from the traditional usury users. Indeed, at present, the usury users no longer through loans to obtain funds to maintain the basic livelihood or for critical things in life, but for business. Wu Ying too. So,For the business it should bear more than for livelihood condemnation? In order to business and had to borrow usury, don't like for livelihood and forced to borrow usury helpless? Therefore, the distinction of Wu Ying is untenable.