In the crime of illegal fundraising, it is of great significance to distinguish between the principal offender and the accessory, which is not only an important starting point for the judicial organs to handle relevant cases, but also a necessary move for criminal suspects to protect their legitimate rights and interests and strive for commutation of sentences for misdemeanors.
(1) Relevant legal provisionsAs for the crime of illegal fundraising, because this type of crime usually involves multiple links and multiple participants such as organizing, planning, and absorbing public deposits, it often constitutes a joint crime. China's laws have detailed provisions on joint crimes, which are mainly embodied in the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law"). Article 25 of the Criminal Law stipulates that "a joint crime refers to a joint intentional crime committed by two or more persons". Article 26 of the Criminal Law stipulates: "A person who organizes or leads a criminal group to carry out criminal activities or plays a major role in a joint crime is the principal offender. A relatively fixed criminal organization formed by three or more persons for the purpose of jointly committing a crime is a criminal group. The ringleaders who organize or lead a criminal group are to be punished in accordance with all the crimes committed by the group. Principal offenders other than those provided for in paragraph 3 shall be punished in accordance with all crimes in which they participated, organized, or directed. Article 27 of the Criminal Law stipulates: "An accessory to a person who plays a secondary or auxiliary role in a joint crime." For accomplices, punishment shall be mitigated, commuted, or waived. Article 6 of the "Opinions on Handling Illegal Fundraising" stipulates: "In handling criminal cases of illegal fundraising, the criminal policy of blending leniency and severity shall be implemented, the scope of criminal responsibility shall be reasonably grasped in accordance with the law, and criminal and administrative means shall be comprehensively used to deal with and resolve risks, so as to punish the minority and educate and save the majority." Based on the perpetrator's objective conduct, subjective malice, and the circumstances of the crime, as well as their status, role, level, position, and other circumstances, a comprehensive judgment should be made of the severity of the perpetrator's responsibility and the necessity of criminal pursuit, and the persons involved in the case should be handled by category in accordance with the principle of differentiated treatment, so that the punishment is appropriate to the crime and the punishment is commensurate with the crime. Focus on punishing the organizers, leaders, and managers of criminal activities of illegal fundraising, including the core, management, and backbone personnel of the higher-level units (head office, parent company) in unit crimes, the management and key personnel of subordinate units (branches, subsidiaries), and other personnel who play a major role. Where persons involved in the case actively cooperate with the investigation, voluntarily return stolen goods and make restitution, or sincerely admit guilt and repentance, they may be given a lighter punishment in accordance with law; where the circumstances are minor, punishment may be waived; Where the circumstances are obviously minor and the harm is not great, it is not to be handled as a crime. ”(2) The significance of distinguishing between principal and accessoryThrough the analysis of the above-mentioned legal provisions, it can be found that the judicial authorities should define and distinguish the status of the principal and accessory of the criminal participants in handling the crime of illegal fundraising, and its significance is as follows:1. Influencing sentencingThe distinction between principal offenders and accomplices helps courts to treat criminal participants with different levels of responsibility more fairly and reasonably when sentencing. Generally speaking, because the principal offender plays a leading role in the crime or plays a greater role, the punishment will be relatively heavier; Accomplices, on the other hand, may be subject to lighter penalties due to their degree of involvement and responsibility. The "Sentencing Guiding Opinions on Common Crimes (Provisional)" provides: "For accomplices, comprehensive consideration of their status and role in the joint crime, shall be given a lenient punishment, reducing the base sentence by 20%-50%; where the crime is relatively minor, the base sentence is reduced by 50% or more, or punishment is waived in accordance with law. ”Prevention and educationThe differential treatment of principal offenders and accomplices also reflects the need for crime prevention and education. Severe punishment of the principal offender can act as a deterrent and prevent the recurrence of criminal acts; Relatively lenient treatment of accomplices, on the other hand, can encourage their rehabilitation and thus achieve the purpose of education and salvation. Promote crimeGroupDisintegrationIn some cases, by distinguishing between the principal offender and the accessory, the accomplice can be encouraged to expose the criminal behavior of the principal offender or other accomplices, which helps to crack the entire criminal gang and is of great significance for fighting crime and maintaining social order. II. How to identify principal and accessory offenders in judicial practice(1) Classification based on status and role
In the criminal activities of illegal fund-raising, those who play a dominant and leading role are identified as the main offenders, including the organizers, planners and commanders. Those who are in a dominant position in the crime of illegal fundraising, who accept the instructions and management of others, and carry out the act of illegally absorbing funds, are usually regarded as accomplices. Specifically: 1. The initiators and conveners of the illegal fundraising, the major shareholders and core management personnel of the company involved in the case, such as the actual controller or general manager of the company, are all uniformly identified as the main offenders. 2. Senior management, such as those in charge or deputy general managers in charge of fundraising directly from unspecified public, should also be identified as principal offenders. 3. For those key personnel of the company who do not participate in the company's decision-making and do not have the right to control, such as the managers of the administrative, logistics, personnel and other departments of the company involved in the case, they should generally be found to be accomplices. 4. The salesman and other personnel of the sales department are only responsible for the amount of their actual participation in the sale, and can usually be identified as accomplices. However, if they play an active role in the crime of illegal fundraising, they may be regarded as the principal offender, but they are not responsible for all the crimes of the joint crime, and in practice such persons are usually business managers, team leaders or business backbones. 5. Some units and individuals are driven by interests to help the perpetrators of illegal fundraising illegally absorb funds, and collect fees such as fees and benefit fees. They work in partnership with fundraising sponsors, who are defined as "intermediaries" and are often defined as accomplices. (2) Classification of status on the basis of objective conductIn determining the principal offender and the accessory offender, the judicial authorities do not make decisions solely on the basis of an individual's position or title, such as legal representative, chairman, general manager, middle management or shareholder. In fact, these identity labels should take a back seat in the assessment, allowing objective facts and behaviors themselves to be the basis for judgment. For example, if a nominal legal representative or shareholder is ignorant of the illegal fundraising activities of his or her employer, then they should not be deemed to be accomplices to the illegal fundraising crime. This shows that status within the framework of company law is not a decisive factor; The key is to assess whether the individual has subjective knowledge and whether he or she is directly involved in organizing, leading, planning, participating in, or assisting in a specific criminal activity. Taking a case in the gazette of the Supreme People's Court as an example (Nanjing Municipal People's Procuratorate of Jiangsu Province v. Xu Guancheng, Xu Guanqing, and Ma Rumei's fund-raising fraud case), the defendant Xu cooperated with others to establish several companies involved in the case and illegally raised funds. Although Feng Mouyun and Ma Mouping are nominally shareholders of the company, they have not been prosecuted by the procuratorate because they did not actually participate in illegal fundraising activities and were subjectively ignorant of the illegal fundraising. Therefore, when assessing the principal offender and the accessory, the subjective knowledge of the individual, the specific activities in which he or she actually participated, and the direct relevance to the criminal act should be taken into account. The core is to determine whether the individual has played a decisive or key role in the illegal fundraising activities, such as whether it is the initiator and planner of the business model, the main leader and organizer of the illegal fundraising, the leader of fund management and decision-making, or the main beneficiary of illegal gains. Together, these factors depict a person's role and influence in the complicity structure. Those assigned to perform auxiliary tasks should be assigned to their roles based on their actual role and influence in the criminal process. If they played an integral role in the chain of crimes, they may still be considered principal offenders; Otherwise, they should be found to be accomplices. (c).The focus of the attack is determined according to the division of the principal and accessory offendersIn cases of illegal fundraising, it is essential to distinguish between principal and accessory, as this is directly related to the application of the penalty and its severity. Since illegal fundraising activities usually operate in the form of companies, platforms or teams, the internal members have a clear division of labor, complementary functions, and orderly flow of funds, forming a corporate governance and hierarchical progressive mechanism. In such a structure, the status and role of different members vary significantly, so it is important to clarify the boundaries of principal and accessory. According to the judicial interpretations and relevant normative documents on illegal fundraising, the judicial organs should focus on cracking down on those members who play a decisive role in organizing, leading, and planning illegal fundraising activities, i.e., the principal offenders. The principal offenders who have a large number of participants, involve a huge amount of money, and cause serious harm to society must be severely punished in accordance with the law, so as to reflect the majesty and justice of the law. For accomplices, i.e., those members who play an auxiliary or secondary role in illegal fundraising activities, appropriate leniency, commutation or exemption from punishment should be given in sentencing according to the size of their actual role and the severity of the circumstances. In particular, those who play a minor role in the process of committing the crime and whose circumstances are relatively minor should be given leniency or even exempted from criminal responsibility. (1) Defendant Zhu X absorbs 2100 million, accomplice, suspended sentence1. Basic facts of the caseZhu, female, joined the company in August 2017 and successively served as the executive deputy general manager of the Pinguan Business Department of Hongshang Fortune (Shanghai) Investment Management and the regional manager of the East Third District. During his tenure, Zhu led the team to absorb a total of 2 capital contract amountsMore than 900 million yuan, the actual amount absorbed is 2More than 100 million yuan, the unpaid amount is 1More than 000 million yuan. [(2021) Hu 0101 Xing Chu No. 569].
The case is disputedThis case is a unit crime, and it is also a joint crime, Zhu X played a secondary role in the joint crime, is an accomplice, and has the circumstances of voluntary surrender; Zhu X pleaded guilty and accepted punishment, and may be given a lenient disposition; It was recommended that Zhu be sentenced to one year and six months in prison to three years and six months, and Zhu's defender submittedZhu X is an accomplice, has the circumstances of voluntary surrender, has returned illegal gains, and his children are young, so it is recommended that the court give Zhu X a lighter punishment and announce a suspended sentence. 3. Court judgmentThe court sentenced him to three years' imprisonment, suspended for three years, and a fine of 50,000 yuan. (b).Defendant Chen X actively participated in criminal activities and was the principal offenderBasic facts of the caseBetween April and August 2016, defendants Lin, Zhang, and Chen established the Yunhuitong Ningde Operation Center in the name of Fujian Weiyi Company. Lin, Zhang, and Chen contributed 2 in cash respectively50,000 yuan, 20,000 yuan, 150,000 yuan, each accounting for shares, and Sun and other 4 defendants accounted for a total of 25% of the shares. Lin and 7 others illegally absorbed deposits of 315 from 18 investors through the Yunhuitong platform1.32 million yuan: 158 yuan of economic losses caused to investors at the time of the case3.12 million yuan. Defendant Lin is responsible for the overall management of the company, defendants Zhang and Sun are responsible for offline store docking, defendant Chen is responsible for the company's finance and Yunhuitong platform business, and defendants Lin, Xie and Wu are responsible for receiving customers and handling general affairs. [(2019) Min 0902 Xingchu No. 114].The case is disputedThe defender believes that Chen X is not the organizer, planner, or directer of the criminal activities of illegal fundraising, and should be found to be an accomplice, and the circumstances are minor, and he may be acquitted. 3、Court decisionThe court held that the defendant Chen's actions were proactive and proactive in the process of illegally absorbing public deposits, such as capital investment, serving as a treasurer, and providing an account to receive investment funds, and that the circumstances of the crime were minor and did not require a criminal punishment, and this opinion was not adopted. (c).The legal representative Li Moujie received a high benefit fee, but he can still be found to be an accomplice. Basic facts of the caseAt the beginning of 2014, the appellant Li Moujie met Lin Mouchuan in Haifeng County (handled in a separate case), Lin Mouchuan proposed to Li Moujie that he could get high interest by lending him money, and introducing others to raise money could give him a return of about 2% of the interest rate difference, and Li Moujie agreed and lent Lin Mouchuan some of his and his relatives' funds at high interest, and jointly established two companies, with Li Moujie as the legal representative. Subsequently, Li Moujie rumored to the public that he was operating small loans, Rongxin Wealth and other businesses, and successively illegally raised funds at high interest rates ranging from 2% to 13% per month. All the funds raised were controlled by Lin Mouchuan and used for personal gambling, squandering and interest payments. At the time of the case, Lin Mouchuan and Li Moujie defrauded a total of 38 people of 2439 funds20,000 yuan, of which Li Moujie directly handled about 69.12 million yuan and received about 700,000 yuan from Lin Mouchuan. [(2016) Yue Xing Zhong No. 1637 Criminal Verdict].The case is disputedThe defender believes that Li Moujie was lured by Lin Mouchuan to commit the crime, and he has been in a position of being used and manipulated from beginning to end, and has not controlled, used, or squandered the stolen money, and the original judgment found that Li Moujie's status as the principal offender was wrong. 3、Court decisionThe court of second instance held that Li Moujie was nominally the legal representative of the two companies and was a shareholder of the same company as Lin MouchuanFrom beginning to end, it was gathered, commanded and used by Lin MouchuanWhere they play a secondary role in a joint crime, they shall be found to be accomplices and given a lighter or commuted punishment in accordance with law. In judicial practice, the definition of principal and accessory offenders in illegal fundraising cases plays a pivotal role. This is not only about the fair trial of the case, but also directly related to the application of the penalty and its severity. For the trial of such cases, the judicial authorities often deeply analyze the objective behavior of the criminal suspect and the role he plays in the joint crime, so as to accurately identify the principal and accessory offenders. This method of identification not only demonstrates the fairness and rigor of the judiciary, but also ensures that the punishment is commensurate with the seriousness of the crime, and truly achieves the goal of punishing the crime. For lawyers, it is extremely important to deeply understand and apply the logic of determining the principal and accessory offenders when defending their clients. Lawyers need to carefully study the details of the case, defend the criminal suspect's behavior, role, etc., and strive to strive for justice for the client. This also enables the prosecution and defense to continuously deepen their understanding of the facts of the case in the fierce debate, and then make the truth of the facts clearer. In general, the definition of principal and accessory in illegal fundraising cases is an indispensable part of judicial practice. Through fair and rigorous identification, we can not only ensure the fair trial of cases, but also maintain the rule of law and order of the society, and realize the fairness and majesty of the law.
Written by: Lawyer Jia Demin; Proofreader: Xie Jinman Assistant).