China News Service, February 24. According to the official WeChat news of the Supreme People's Court, on February 24, the Supreme People's Court issued the "Decision on Amending the Interpretation of the Supreme People's Court on Several Issues concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund Raising". Revise and improve the conviction and punishment standards for the crime of illegally absorbing public deposits and the crime of fund-raising fraud in the original judicial interpretation, clarify the application of relevant laws, better implement the criminal policy of combining leniency with strictness, punish illegal fund-raising crimes in accordance with the law, and maintain national financial security and stability.
It is understood that in 2010, the Supreme People's Court formulated the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund Raising (hereinafter referred to as the "Interpretation"), and the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security issued the "Interpretation" in 2014. In 2019, the Opinion on Handling Criminal Cases of Illegal Fund Raising was issued, which clarified the conviction and sentencing standards and relevant legal application issues for illegal fundraising crimes such as illegally absorbing public deposits and fundraising fraud.
Since the implementation of the Interpretation, public security, procuratorial and judicial organs have strictly followed the Criminal Law and the relevant provisions of the Interpretation, punished illegal fund-raising crimes in accordance with the law, effectively prevented and resolved major financial risks, and effectively maintained financial management order and national financial security, and achieved remarkable results.
On March 1, 2021, the "Amendment to the Criminal Law of the People's Republic of China (Eleven)" was officially implemented, making major revisions to the criminal law provisions for the crime of illegally absorbing public deposits and fund-raising fraud, and convicting the crime of illegally absorbing public deposits and fund-raising fraud. Sentencing has a major impact.
The person in charge of the Third Criminal Division of the Supreme People's Court said that in light of economic and social development and judicial practice, the Interpretation urgently needs to be revised and improved, and appropriate adjustments should be made to the relevant conviction and sentencing standards to further clarify the disputed issues concerning the application of the law.
The original provisions of the "Interpretation" consist of nine articles, and the revised "Interpretation" has a total of fifteen articles, focusing on the revision and improvement of the conviction and sentencing standards for the crime of illegally absorbing public deposits and the crime of fund-raising fraud.
At the same time, further revise and improve the characteristics of the crime of illegally absorbing public deposits and the behavioral methods of illegally absorbing funds, clarifying the amount of fines for the crime of illegally absorbing public deposits and the crime of fund-raising fraud, and clarifying the crime of illegally absorbing public deposits and fund-raising fraud. The principle of co-competitive punishment for the crime of pyramid selling activities, and clarify the conviction and sentencing standards for the crime of illegally absorbing public deposits and the crime of fund-raising fraud.
The revised Interpretation retains the four characteristic elements of the crime of illegally absorbing public deposits unchanged, namely illegality, openness, inducement, and sociality. Combined with new judicial practices and new forms of crime, online lending, virtual currency transactions, Financial leasing and other new forms of illegally absorbing funds, and at the same time, in view of the prominent problem of illegal fund-raising in the field of elderly care, the situation of "illegal absorption of funds by means of providing 'elderly services', investing in 'elderly projects', and selling 'elderly products'" has been added. Provide a basis for punishing illegal fund-raising crimes such as P2P, virtual currency transactions, and pension fields in accordance with the law.
The revised Interpretation clarifies the conviction and sentencing standards for the crime of illegally absorbing public deposits and the crime of fund-raising fraud, no longer distinguishing between natural person crimes and unit crimes, and appropriately raising the criminalization standards for the crime of illegally absorbing public deposits.
At the same time, it clarifies the application of the circumstance of actively returning illicit property and compensation for the crime of illegally absorbing public deposits. Those who actively return illicit property and compensation before initiating a public prosecution to reduce the occurrence of damage may be punished with a lighter or reduced punishment; if returning the illicit property and compensation after a public prosecution is initiated, it may be used as a sentencing circumstance. Consider as appropriate.
Where a unit commits the crime of illegally absorbing public deposits or the crime of fund-raising fraud, the conviction and sentencing standards for crimes committed by natural persons in the Interpretation shall apply, the unit shall be fined, and the persons in charge directly responsible for it and other persons who are directly responsible shall be convicted and punished.
The "Decision of the Supreme People's Court on Amending the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund Raising" was adopted at the 1860th meeting of the Judicial Committee of the Supreme People's Court on December 30, 2021, and is hereby promulgated , effective from March 1, 2022.
Supreme People's Court
February 23, 2022
Legal Interpretation [2022] No. 5
Supreme People's Court
Decision on Amending the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund Raising
(Adopted at the 1860th meeting of the Judicial Committee of the Supreme People's Court on December 30, 2021, and effective from March 1, 2022)
In accordance with the revision of the Criminal Law and judicial practice, it is hereby decided to amend the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Illegal Fund Raising (Fa Shi [2010] No. 18, hereinafter referred to as the Interpretation) as follows:
1. Item 1 of Paragraph 1 of Article 1 is amended to read: "Acquisition of funds without the legal permission of the relevant departments or by borrowing the form of legal business operations", and the second item is amended to read: "Through the Internet, the media, promotion conferences, leaflets, mobile phones information and other means to publicize it to the public.”
2. Amend item 8 of Article 2 to read: "Illegal absorption of funds by means of online lending, investment in shares, virtual currency transactions, etc.", and item 9 is revised to read: "Illegal absorption of funds by means of entrusted wealth management, financial leasing, etc. ”, and one item was added as the tenth item: “Illegal absorption of funds by means of providing ‘elderly care services’, investing in ‘elderly care projects’, selling ‘elderly products’, etc.”, the original tenth and eleventh items were changed to tenth Item 1, item 12.
3. Amend Article 3 to read: "If one of the following circumstances is involved in illegally absorbing or disguised absorbing public deposits, criminal responsibility shall be investigated according to law:
"(1) Illegal absorption or disguised absorption of public deposits of more than 1 million yuan;
"(2) Illegal absorption or disguised absorption of more than 150 public deposits;
"(3) Illegal absorption or disguised absorption of public deposits, causing direct economic losses of more than 500,000 yuan to depositors.
"If the amount of illegally or disguised absorption of public deposits is more than 500,000 yuan, or the direct economic loss caused to the depositor is more than 250,000 yuan, and one of the following circumstances occurs, criminal responsibility shall be investigated according to law:
"(1) Those who have been criminally investigated for illegal fundraising;
"(2) Those who have received administrative penalties for illegal fundraising within two years;
"(3) Causing bad social impact or other serious consequences."
4. One article is added as Article 4: "Illegal absorption or disguised absorption of public deposits under any of the following circumstances shall be deemed as 'a huge amount or other serious circumstances' as prescribed in Article 176 of the Criminal Law:
"(1) Illegal absorption or disguised absorption of public deposits of more than 5 million yuan;
"(2) Illegal absorption or disguised absorption of more than 500 public deposits;
"(3) Illegal absorption or disguised absorption of public deposits, causing direct economic losses of more than 2.5 million yuan to depositors.
"If the amount of illegally or disguised absorption of public deposits is more than 2.5 million yuan, or the amount of direct economic losses caused to the depositor is more than 1.5 million yuan, and there is also the circumstance of item 3, paragraph 2, Article 3 of this interpretation, it shall be determined as 'other' Serious plot'."
V. One article is added as Article 5: "Illegal absorption or disguised absorption of public deposits, under any of the following circumstances, shall be determined as 'the amount is particularly huge or there are other particularly serious circumstances' stipulated in Article 176 of the Criminal Law. :
"(1) Illegal absorption or disguised absorption of public deposits of more than 50 million yuan;
"(2) Illegal absorption or disguised absorption of more than 5,000 public deposit objects;
"(3) Illegal absorption or disguised absorption of public deposits, causing direct economic losses of more than 25 million yuan to depositors.
"Where the amount of illegally or disguised absorption of public deposits is more than 25 million yuan, or the direct economic loss to the depositor is more than 15 million yuan, and there are circumstances in item 3, paragraph 2, Article 3 of this Interpretation, it shall be determined as 'other' particularly serious circumstances'."
6. One article is added as Article 6: "The amount of illegally absorbed or disguised deposits from the public shall be calculated based on the full amount of funds absorbed by the perpetrator. Those who actively return the stolen goods and compensations before instituting a public prosecution to reduce the occurrence of damages, may be given a lighter punishment. Or reduce the punishment; if the illicit money is returned after a public prosecution is filed, it may be considered as the circumstances of sentencing.
"Illegal absorption or disguised absorption of public deposits, mainly for normal production and business activities, can be exempted from criminal punishment if the absorbed funds can be cleared before a public prosecution is filed; where the circumstances are significant and minor and the harm is not great, it shall not be treated as a crime.
"For those who do not need to be investigated for criminal responsibility or exempt from criminal punishment in accordance with the law, the case should be transferred to the relevant administrative organ in accordance with the law."
7. Change the original Article 4 to Article 7.
8. Change the original Article 5 to Article 8 and amend it to read: "If the amount of fund-raising fraud is more than 100,000 yuan, it shall be determined as a 'large amount'; '.
"Where the amount of fund-raising fraud is more than 500,000 yuan, and there are circumstances in item 3, paragraph 2, Article 3 of this Interpretation, it shall be identified as 'other serious circumstances' stipulated in Article 192 of the Criminal Law.
"The amount of fund-raising fraud is calculated based on the amount actually obtained by the perpetrator, and the amount that has been returned before the incident should be deducted. Advertising fees, intermediary fees, handling fees, and rebates paid by the perpetrator for the implementation of fund-raising fraud activities, or used for bribery Expenses such as donations, gifts, etc. shall not be deducted. The interest paid by the perpetrator for the implementation of fund-raising fraud activities shall be included in the amount of fraud, except that the principal is not returned and can be deducted from the principal.”
9. One article is added as Article 9: "If the crime of illegally absorbing deposits from the public is committed, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and concurrently or only be fined, shall be fined not less than 50,000 yuan but not more than 1 million yuan; sentenced to three years Those who are sentenced to fixed-term imprisonment of not less than 10 years shall be concurrently fined not less than 100,000 yuan but not more than 5 million yuan; those who are sentenced to fixed-term imprisonment of not less than 10 years shall be concurrently fined not less than 500,000 yuan.
"Whoever commits the crime of fund-raising fraud shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined not less than 100,000 yuan but not more than 5 million yuan; if he is sentenced to fixed-term imprisonment of not less than seven years or life imprisonment, he shall also be sentenced to a fine of not less than 500,000 yuan or more or Confiscation of property."
10. Change the original Article 6 to Article 10.
11. Change the original Article 7 to Article 11.
12. Change the original Article 8 to Article 12, and amend the second paragraph of the original Article 8 to read: "Knowing that others are engaged in fraudulent issuance of securities, illegally absorbing public deposits, issuing stocks, company and enterprise bonds without authorization, and raising funds Those who defraud or organize or lead pyramid selling activities and other fund-raising criminal activities, and provide advertisements and other publicity for them, shall be punished as accomplices of relevant crimes.”
13. One article is added as Article 13: "Where the illegal absorption of funds from the public through pyramid schemes constitutes the crime of illegally absorbing public deposits or the crime of fund-raising fraud, and at the same time constitutes the crime of organizing and leading pyramid selling activities, the punishment shall be heavier. Provide for conviction and punishment.”
XIV. One article is added as Article 14: "Where a unit commits the crime of illegally absorbing public deposits or raising funds to defraud, the unit shall be fined in accordance with the standards for conviction and sentencing of the corresponding natural person crime as stipulated in this Interpretation, and the person directly responsible for it shall be fined. Personnel and other directly responsible persons shall be convicted and punished.”
15. Change the original Article 9 to Article 15.
This decision will take effect on March 1, 2022.
In accordance with this decision, the Interpretation shall be revised accordingly and the order of the articles shall be adjusted, and then republished.
Supreme People's Court
Regarding the specific application of laws in the trial of criminal cases of illegal fundraising
Explanation of some issues
(Adopted at the 1502nd meeting of the Judicial Committee of the Supreme People's Court on November 22, 2010, in accordance with the "Supreme People's Court on Amendments to the Supreme People's Court on Trial of Illegal Fund Raising" adopted at the 1860th meeting of the Judicial Committee of the Supreme People's Court on December 30, 2021 "Decision on the Interpretation of Several Issues Concerning the Specific Application of Law in Criminal Cases" Amendment, which shall come into force on March 1, 2022)
In order to punish illegal fund-raising criminal activities such as illegally absorbing public deposits and fund-raising fraud, in accordance with the provisions of the Criminal Law of the People's Republic of China, the interpretation of several issues concerning the specific application of law in the trial of such criminal cases is as follows:
Article 1 The act of absorbing funds from the public (including units and individuals) in violation of the provisions of the state's financial management laws, and meeting the following four conditions at the same time, shall be recognized as Criminal Law No. 176 unless otherwise provided by the Criminal Law "Illegal absorption of public deposits or absorption of public deposits in disguised form" stipulated in Article 1:
(1) Absorbing funds without the legal permission of the relevant departments or by borrowing the form of legal business operations;
(2) Publicity to the public through the Internet, the media, promotion conferences, leaflets, mobile phone information, etc.;
(3) Commitment to repay the principal and interest or pay returns in currency, physical objects, equity, etc. within a certain period of time;
(4) Absorbing funds from the public, that is, from unspecified social objects.
Abstaining funds from relatives, friends or units targeting specific objects without publicity to the public does not constitute an illegal absorption or disguised absorption of public deposits.
Article 2 Whoever commits any of the following acts and meets the conditions specified in the first paragraph of Article 1 of this Interpretation shall be convicted and punished for the crime of illegally absorbing public deposits in accordance with the provisions of Article 176 of the Criminal Law:
(1) Abstaining from the real content of real estate sales or without real estate sales as the main purpose, illegally absorbing funds by means of rebate sales, after-sale lease, agreed repurchase, sale of real estate shares, etc.;
(2) Illegally absorbing funds by means of transferring forest rights and acting as management and protection;
(3) Illegal absorption of funds by means of planting (breeding) on behalf of, renting (breeding), or joint planting (breeding);
(4) It does not have the real content of selling commodities or providing services, or does not use selling commodities or providing services as its main purpose, and illegally absorbs funds by means of commodity repurchase, deposit and sales, etc.;
(5) Without the real content of issuing stocks and bonds, illegally absorbing funds by means of false transfer of equity, sale of fictitious bonds, etc.;
(6) Abstaining from the true content of the fund raising, illegally absorbing funds under the guise of overseas funds, selling fictitious funds, etc.;
(7) Absent the true content of selling insurance, and illegally absorb funds by counterfeiting insurance companies, forging insurance documents, etc.;
(8) Illegal absorption of funds by means of online lending, investment in shares, virtual currency transactions, etc.;
(9) Illegal absorption of funds by means of entrusted wealth management, financial leasing, etc.;
(10) Illegal absorption of funds by means of providing "elderly care services", investing in "elderly care projects", and selling "elderly products";
(11) Illegally absorb funds by using non-governmental organizations such as "associations" and "communities";
(12) Other acts of illegally absorbing funds.
Article 3 Those who illegally absorb or absorb public deposits in a disguised form under any of the following circumstances shall be investigated for criminal responsibility according to law:
(1) Illegal absorption or disguised absorption of public deposits of more than 1 million yuan;
(2) Illegal or disguised absorption of more than 150 depositors from the public;
(3) Illegal absorption or disguised absorption of public deposits, causing direct economic losses of more than 500,000 yuan to depositors.
Anyone who illegally absorbs or disguised deposits from the public with an amount of more than 500,000 yuan or caused a direct economic loss to the depositor of more than 250,000 yuan, and has any of the following circumstances, shall be investigated for criminal responsibility according to law:
(1) Those who have been criminally investigated for illegal fundraising;
(2) Those who have received administrative penalties for illegal fund-raising within two years;
(3) causing bad social impact or other serious consequences.
Article 4 Illegally absorbing or disguised absorbing public deposits, under any of the following circumstances, shall be identified as "a huge amount or other serious circumstances" stipulated in Article 176 of the Criminal Law:
(1) Illegal absorption or disguised absorption of public deposits of more than 5 million yuan;
(2) Illegal absorption or disguised absorption of more than 500 public deposits;
(3) Absorbing public deposits illegally or in a disguised form, causing direct economic losses of more than 2.5 million yuan to the depositors.
If the amount of illegally or disguised absorption of public deposits is more than 2.5 million yuan, or the direct economic loss caused to the depositor is more than 1.5 million yuan, and there are circumstances in item 3, paragraph 2, Article 3 of this interpretation, it shall be determined as "other serious plot".
Article 5 Illegally absorbing or disguised absorbing public deposits, under any of the following circumstances, shall be identified as "a particularly huge amount or other particularly serious circumstances" as prescribed in Article 176 of the Criminal Law:
(1) Illegal absorption or disguised absorption of public deposits of more than 50 million yuan;
(2) Illegal absorption or disguised absorption of more than 5,000 public deposit objects;
(3) Absorbing public deposits illegally or in a disguised form, causing direct economic losses of more than 25 million yuan to the depositors.
If the amount of illegally or disguised absorption of public deposits is more than 25 million yuan or the direct economic loss caused to the depositor is more than 15 million yuan, and the circumstance in item 3, paragraph 2, Article 3 of this Interpretation is found, it shall be determined as "other special serious circumstances".
Article 6 The amount of illegally absorbed or disguised deposits from the public shall be calculated based on the full amount of funds absorbed by the perpetrator.
Those who actively return the illicit goods and compensations before filing a public prosecution to reduce the occurrence of damage may be given a lighter or mitigated punishment; if they return the illicit property and compensations after filing a public prosecution, they may be considered as the circumstances of sentencing as appropriate.
Illegal absorption or disguised absorption of public deposits is mainly used for normal production and business activities, and the funds absorbed can be cleared before the public prosecution, and can be exempted from criminal punishment; if the circumstances are significant and minor, the harm is not serious, and it will not be treated as a crime.
For those who do not need to be investigated for criminal responsibility or exempt from criminal punishment according to law, the case shall be transferred to the relevant administrative organ in accordance with the law.
Article 7 Whoever uses fraudulent methods to carry out the acts listed in Article 2 of this Interpretation for the purpose of illegal possession shall be convicted and punished for the crime of fundraising fraud in accordance with the provisions of Article 192 of the Criminal Law.
The use of fraudulent methods to illegally raise funds under any of the following circumstances may be deemed as "illegal possession for the purpose":
(1) After raising funds, it is not used for production and business activities or is obviously disproportionate to the scale of production and business activities and the scale of funds raised, so that the funds raised cannot be returned;
(2) wantonly squandering the raised funds, so that the raised funds cannot be returned;
(3) Escape with the funds raised;
(4) Using the raised funds for illegal and criminal activities;
(5) evading, transferring funds, concealing property, and evading the return of funds;
(6) Concealing or destroying accounts, or engaging in false bankruptcy or bankruptcy, evading the return of funds;
(7) Refusing to explain the whereabouts of the funds and evading the return of the funds;
(8) Other circumstances under which the purpose of illegal possession can be determined.
The purpose of illegal possession in the crime of fund-raising fraud shall be specifically identified according to the circumstances.
If some of the illegal fund-raising acts of the perpetrators have the purpose of illegal possession, the fund-raising funds involved in the part of the illegal fund-raising activities shall be convicted and punished with the crime of fund-raising fraud; some of the perpetrators in the joint crime of illegal fund-raising have the purpose of illegal possession, and other perpetrators have not illegally possessed the fund-raising funds. If there is a common intention and behavior, the perpetrator with the purpose of illegal possession shall be convicted and punished for the crime of fund-raising fraud.
Article 8 If the amount of fund-raising fraud is more than 100,000 yuan, it shall be determined as a "large amount"; if the amount is more than 1 million yuan, it shall be recognized as a "large amount".
If the amount of fund-raising fraud is more than 500,000 yuan, and there is also the circumstance of item 3, paragraph 2, Article 3 of this interpretation, it shall be identified as "other serious circumstances" as stipulated in Article 192 of the Criminal Law.
The amount of fund-raising fraud is calculated based on the amount actually obtained by the perpetrator, and the amount that has been returned before the incident should be deducted.
Advertising fees, intermediary fees, handling fees, and rebates paid by the perpetrator for the implementation of fund-raising fraud activities, or for bribes, gifts, etc., shall not be deducted.
The interest paid by the perpetrator for the implementation of fund-raising fraud activities shall be included in the amount of fraud, except that the principal has not been returned and can be deducted from the principal.
Article 9 Whoever commits the crime of illegally absorbing public deposits shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and concurrently or solely with a fine, shall be fined not less than 50,000 yuan but not more than 1 million yuan; if he is sentenced to fixed-term imprisonment of not less than three years but not more than 10 years, A fine of not less than 100,000 yuan but not more than 5,000,000 yuan shall be imposed in addition; if the sentence is fixed-term imprisonment of not less than 10 years, a fine of not less than 500,000 yuan shall also be imposed.
Whoever commits the crime of fund-raising fraud shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and a fine of not less than 100,000 yuan but not more than 5 million yuan; if he is sentenced to fixed-term imprisonment of not less than seven years or life imprisonment, he shall be sentenced to a fine of not less than 500,000 yuan or confiscation. property.
Article 10 Without the approval of the relevant competent departments of the state, issuing stocks or company or enterprise bonds in disguised form to unspecified social objects, transferring equity or other means, or issuing or disguised issuance of stocks or company or enterprise bonds to specific objects has accumulated more than 200 people. , shall be identified as "unauthorized issuance of stocks or company or enterprise bonds" as stipulated in Article 179 of the Criminal Law.
If a crime is constituted, it shall be convicted and punished for the crime of issuing stocks, company or enterprise bonds without authorization.
Article 11 Whoever violates state regulations by issuing fund shares to raise funds without legal approval, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operations in accordance with the provisions of Article 225 of the Criminal Law.
Article 12 If an advertising operator or advertisement publisher violates state regulations and uses advertisements to make false propaganda for commodities or services related to illegal fund-raising activities, and falls under any of the following circumstances, he or she shall be punished in accordance with the provisions of Article 222 of the Criminal Law. False advertising crime conviction and punishment:
(1) The amount of illegal gains is more than 100,000 yuan;
(2) causing serious harmful consequences or bad social impact;
(3) Those who use advertisements to make false propaganda within two years and have received administrative punishment more than twice;
(4) Other circumstances where the circumstances are serious.
Knowing that others are engaged in fraudulent issuance of securities, illegally absorbing public deposits, issuing stocks, company or corporate bonds without authorization, raising funds for fraud or organizing or leading pyramid selling activities and other fund-raising criminal activities, and providing them with advertisements and other publicity, shall be punished as accomplices of relevant crimes.
Article 13 Whoever illegally absorbs funds from the public through pyramid schemes, which constitutes the crime of illegally absorbing public deposits or the crime of fund-raising fraud, and at the same time constituting the crime of organizing and leading pyramid selling activities, shall be convicted and punished in accordance with the provisions of heavier punishment.
Article 14 Where a unit commits the crime of illegally absorbing public deposits or raising funds to defraud, the unit shall be fined in accordance with the standards for conviction and sentencing of the corresponding natural person crime stipulated in this Interpretation, and the person in charge and other persons directly responsible for it shall be convicted and punished.
Article 15 In the event of inconsistency between the judicial interpretations issued before and this interpretation, this interpretation shall prevail.