Criminal Law Amendments Solicit Comments or Amend Provisions on Crimes of Illegal Absorption of Public Deposits and Fund-raising Fraud
On the 11th Amendment to the Criminal Law, comments are still being sought as scheduled. Judging from the content of the revisions, part of it is necessary to fulfill China's international legal obligations — in the economic and trade agreement between China and the US, there was a special agreement on the penalization of intellectual property rights. In response to this, the eleven-mile amendment has also been adjusted accordingly.
However, Sister Sa only cares about one hectare of her own land. weAmendments to provisions relating to the crime of illegal absorption of public deposits and the crime of fund-raising fraudThere are some personal opinions that I'm not happy today.
Crime of illegally absorbing public deposits
Open up section 176 of the Criminal Code. Whoever illegally absorbs public deposits or disguises the collection of public deposits and disrupts the financial order shall be punished with fixed-term imprisonment of not less than three years or criminal detention, and a fine of not less than 20,000 yuan and not more than 200,000 yuan; if the amount is huge or there are other serious circumstances, the penalty shall be fixed-term imprisonment of not less than three years and not more than 500,000 yuan, and a fine of not less than 50,000 yuan and not more than 500,000 yuan.
This provision is to be amended to read: Anyone who illegally absorbs public deposits or disguises public deposits and disrupts the financial order shall be punished with fixed-term imprisonment of not more than 3 years or criminal detention, and a fine; if the amount is huge or there are other serious circumstances, the penalty shall be fixed-term imprisonment of not less than 3 years and not more than 10 years, and a fine;If the amount is particularly large or there are other particularly serious circumstances, the penalty shall be fixed-term imprisonment of at least 10 years and a fine.
Note that there are two changes:
One isThe amount of the fine ranged from “a few” to “none”In other words, previously the maximum fines were 200,000 and 300,000, respectively, but now the fines can be raised or lowered as appropriate. As an old lawyer who has worked for more than ten years, Sister Sa can judge that in future cases, an increase in fines is more likely to happen. As for how much, it is not easy to guess now; there will be judicial interpretations or practical practices in the future.
Second, it has been increased“Extremely large or other particularly serious circumstances” section. In other words, the period of non-smoking sentences mentioned in the industry has risen from a maximum of 10 years to 15 years. In other words, on the basis that the old law divided the crime into two sentences, a sentence file was added.
We think this is mainly related to the rise and fall of internet finance in recent years. P2P online lending platform involvedPenalties can easily be hundreds of millions, or even 10 billionHowever, the highest-level criminal threshold in the old law was 5 million yuan. Faced with 100 million yuan cases, the judicial authorities' crackdown measures were still those methods, and they were not strengthened accordingly. In other words, the amount involved in the case ranged from 5 million to 10 billion, and the sentence file was the same. In this way, it is clearly impossible to distinguish the “length of sentence to be imposed” for the amount of the different crimes.
The draft adds 10-15 years to the file, which is set for situations where the amount of money involved in the case is particularly large. Based on Sister Sa's experience, it is speculated that this crime is a particularly huge amountIt may be set at 50 million yuan. If yes, it's actually impossible to tell the difference between the 100 million yuan and the 10 billion yuan platform boss in the online lending platform case, really “the sentence that should be imposed.”
Other particularly serious circumstances, Sister Sa believes, are likely to be incidents such as the death of fund-raising participants. Everyone involved in the online lending platform is requested to pay attention to maintaining the mental state of the fund-raising participants to prevent tragedies.
In terms of prison terms, it has been increased to “10 years or more fixed-term imprisonment”; the maximum term of imprisonment is 15 years. In other words, the crime of illegally absorbing public deposits. The future sentence will be raised from a maximum of 10 years to 15 years, and the 10 billion online lending platform is expected to “enjoy” this treatment.
The crime of fund-raising fraud
Also, look at section 192 of the Criminal Code, “Where fraudulent methods are used to illegally raise funds for the purpose of illegal occupation, a large amount of money,Sentenced to a fixed-term prison sentence of not more than five years or criminal detention, and a fine of not less than 20,000 yuan and not more than 200,000 yuan; where the amount is huge or there are other serious circumstances,Penalty of five to ten years in prisonIt also imposes a fine of not less than 50,000 yuan and not more than 500,000 yuan; if the amount is particularly large or there are other particularly serious circumstances, the penalty is not less than 10 years of fixed-term imprisonment or life imprisonment, and a fine of not less than 50,000 yuan and not more than 500,000 yuan or confiscation of property”.
It is proposed to amend it to read “Where fraudulent methods are used to raise funds illegally for the purpose of illegal occupation, a large amount of money shall be punishedFixed-term imprisonment of at least 3 years but not more than 7 years, and a fine; if the amount is huge or there are other serious circumstances,Sentenced to 7 years or more in prison or life imprisonment, and fines or forfeiture of property.”
There are three changes:
One isThe exact amount of the fine has been removedThe reason analysis is the same as section 176 of the Criminal Code for the crime of illegally absorbing public deposits.
Second isThe minimum sentence was changed from criminal detention to three years in prison.
Currently, the minimum sentence for fund-raising fraud is criminal detention; there is no need to go to a detention center or prison to carry out the rest of the sentence. Since the death penalty was abolished under section 199 of the Criminal Code for the crime of fund-raising fraud, there have been voices in the industry saying, “It's not strong enough; the death penalty has been reinstated. But the legislature withstood the pressure. However, in the face of the rampant crime of fund-raising fraud, it is still necessary to deal a severe crackdown. In this way, the draft directly upgrades the minimum sentence, which is also considered a solution.
Three isA particularly large amount of criminal records has been removed.
Compared to the crime of illegally absorbing public deposits under section 176 of the Criminal Code, a third particularly large sentence was added. Section 192 of the Criminal Code removed this sentence for the crime of fund-raising fraud: it no longer distinguishes between huge amounts and particularly large amounts. This gives the judicial officer a particularly large degree of discretion. Whether the sentence is 7 years or an indefinite sentence is under his pen.
According to the 2010 Supreme Law “Interpretation on Certain Issues Concerning the Specific Application of the Law in Trial of Criminal Cases of Illegal Fund-raising”, the amount was set at 300,000 yuan, and the amount was set at a particularly huge amount of 1 million yuan. However, in judicial practice, the 300,000 yuan sentence is hardly usable; current cases can easily reach hundreds of millions of dollars.
Once upon a time in a case, Sister Sa tried desperately to get rid of 50% of the crime amount. The prosecutor calmly said, “As long as it's not less than 1 million, what's the point?! I still have a deep memory of this.
Since in practice, the second file is almost out of the question, simply delete it, keep the two files, and extend the entire crime from 3 years to an indefinite period to play a deterrent and crackdown effect.
Write at the end
As for the addition and amendment of the other charges, this article will not state them one by one. Still, Sister Sa is only responsible for 1 mu and 3 of her own land.
I must admit that if Criminal Law Amendment 11 is officially introduced, it will have a major impact on online lending and other mutual fund platform cases over the years. Its direct effect is to “take it seriously.” It can be said that for old friends in the mutual fund industry, this isNicolemessage.
Currently, what we can do is buy time to maximize repayments. At the same time, friends who are not on bail awaiting trial must not passively slack off. An online lending platform executive somewhere in Zhejiang who was not active in collecting money within 2 years was changed from a charge of not engaging in fund-raising fraud.
Therefore, please be diligent, prepare your knowledge in advance, and face it bravely. I really can't stand it; Sister Sa is there.
Source: Lawyer Shaw
