On the scope of restitution
Providing assistance for others to illegally absorb public funds, and charging them agency fees, benefit fees, rebate fees, commissions, royalty fees and other expenses, which constitutes illegal fund-raising, is a crime, and criminal responsibility shall be investigated according to law. Those who can refund the above fees in time may be given a lighter punishment according to law; If the circumstances are minor, punishment may be exempted; If the circumstances are obviously minor and the harm is not great, it will not be treated as a crime.
(two) on the recovery and disposal of the property involved.
Illegal absorption of public funds is illegal income. In accordance with the law, recover the interest and dividends paid to fund-raising participants by absorbing funds, as well as the agency fees, benefits fees, rebate fees, commissions, commissions and other fees paid to those who help absorb funds. If the principal of the fund-raising participant has not been returned, the paid repayment can offset the principal.
According to the Opinions, the employees involved in the case belong to those who "help others to illegally absorb public funds", and their remuneration includes agency fees, benefits fees, kickbacks, commissions and commissions. Generally speaking, they helped get the money. The investor's principal belongs to illegally absorbed funds and should be recovered, but it does not belong to the compensation scope of the employees involved, and the compensation should be returned by the person who directly or indirectly obtained the funds.
(3) In practice, the judicial organs expand the scope of restitution.
As ordinary employees involved in the case, public security organs often take compulsory measures to detain them in detention centers after filing a case, regardless of whether it really constitutes a crime. When lawyers apply for bail pending trial, the staff of public security organs (including the case-handling personnel of procuratorial organs) all demand restitution, and the scope of restitution includes the investor's principal loss in addition to his salary and commission during his employment. Obviously, this is illegal, but it is such an unreasonable and legal reason. Often as a condition of bail pending trial, the threshold and difficulty of bail pending trial are artificially raised. If you hire a lawyer, you will fight this kind of behavior of some judicial organs, point out the illegal places beyond the scope, and strive for the legitimate rights and interests of criminal suspects.
Second, 1. Crime of illegally absorbing public deposits Article 176 of China's Criminal Law stipulates that "whoever illegally absorbs public deposits or absorbs public deposits in disguise, disrupting financial order, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; 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 not less than 50,000 yuan but not more than 500,000 yuan. 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. "
Peer-to-peer lending, a typical model of internet finance, is a pure intermediary model, the fastest-growing creditor's rights transfer model and its derivative "optimal plan" model, that is, after investors join the optimal plan, the funds entering the plan account will enter the lock-up period. During the lock-up period, the principal returned after bidding will continue to be used for priority automatic bidding and cannot be transferred out of the planned account or withdrawn. After the lock-up period ends, investors can choose whether to continue to use the plan. If you opt out, the creditor's rights will be automatically transferred first, which may involve the problem of fund pool. The main manifestations are: some P2P peer-to-peer lending platforms design the loan demand as a wealth management product to sell to investors, or simply design a false loan target to collect funds first, and then find a borrower to let the investors' funds enter the intermediate account of the platform, resulting in a fund pool. This situation may also exist in the creditor's rights transfer mode and the optimal planning mode. The difference is that in these two models, the flow speed of creditor's rights transfer funds is faster than that of loan information, forming a pool of funds. Although both of these models involve third-party individuals, most of them are highly correlated with P2P peer-to-peer lending platforms. The existence of the P2P peer-to-peer lending platform's fund pool, the unlimited opening of the Internet, the huge number of customers, the rapid accumulation of single funds, and the slogan and symbolic characteristics of the platform to ensure high returns make the P2P peer-to-peer lending platform a high-risk field suspected of illegally absorbing public deposits.
Crowdfunding is another internet finance model besides P2P peer-to-peer lending, which is easy to involve the crime of illegally absorbing public deposits. In the initial stage, the crowdfunding platform is also very likely to fabricate some projects to raise investors' funds first and then look for investment opportunities, which is quite similar to P2P's crime of illegally absorbing public deposits in other behavioral elements.
Three. Composition and sentencing of the crime of illegally absorbing public deposits I. Crime of illegally absorbing public deposits
According to Article 4 of the State Council's Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities, illegally absorbing public deposits refers to the activities of absorbing funds from unspecified social objects without the approval of the People's Bank of China, issuing certificates and promising to repay the principal and interest within a certain period of time; Disguised absorption of public deposits refers to an activity that, without the approval of the People's Bank of China, absorbs funds from unspecified social objects in the name of absorbing public deposits, but promises to perform the same obligations as absorbing public deposits.
200 1 the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the Standard Provisions on the Prosecution of Economic Crime Cases, in which Article 24 stipulates that anyone who illegally absorbs public deposits or absorbs public deposits in disguised form and disrupts the financial order shall be prosecuted under any of the following circumstances:
(1) Individuals illegally absorb or absorb public deposits in disguised form, with an amount of more than 200,000 yuan, and units illegally absorb or absorb public deposits in disguised form, with an amount of more than10 million yuan;
(2) Individuals illegally or disguised to absorb more than 30 public deposits, and units illegally or disguised to absorb more than 150 public deposits;
(3) Where an individual illegally absorbs or disguises public deposits, resulting in direct economic losses of more than 100,000 yuan for depositors, and the unit illegally absorbs or disguises public deposits, resulting in direct economic losses of more than 500,000 yuan for depositors.