When you first hear about "illegal fundraising", some readers and friends may think that it is a little far away, but in fact, "illegal fundraising" is not far away from us. In judicial practice, perpetrators who engage in illegal fundraising activities are generally eventually investigated for criminal liability for the crime of illegally absorbing deposits from the public or the crime of fundraising fraud, among which illegal absorption of public deposits is mostly manifested in the provision of various investment and wealth management, financial services, promises of cash rebates and other "financial products" that promise to return principal and interest, which are extremely common in daily life.
According to Article 176 of the Criminal Law of the People's Republic of China, the crime of illegally absorbing deposits from the public refers to the illegal absorption of public deposits or the disguised absorption of public deposits in violation of national financial management laws and regulations, thereby disrupting the financial order, thus constituting a crime. The subject of the crime can be either an individual or a unit.
According to the different amounts involved, there are three levels of sentencing for the crime of illegally absorbing public deposits: if "non-absorption" is established, a sentence of up to three years imprisonment or short-term detention shall be given, and/or a fine;where the amount is huge or there are other serious circumstances, a sentence of between 3 and 10 years imprisonment and a concurrent fine is to be given;where the amount is especially huge or there are other especially serious circumstances, a sentence of 10 or more years imprisonment and a concurrent fine is to be given.
So, how to determine "huge amount" and "particularly large amount"?
According to Article 4 of the Minutes of the National Symposium on the Trial of Financial Crime Cases by Courts, if an individual illegally absorbs or covertly absorbs more than 1 million yuan of public deposits, and an entity illegally absorbs or covertly absorbs more than 5 million yuan of public deposits, it may be found that the amount is "huge".
According to Article 5 of 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 Fundraising, the amount of deposits illegally absorbed or covertly absorbed from the public is more than 50 million yuan;Illegally absorbing or covertly absorbing more than 5,000 people from the public;Where deposits from the public are illegally absorbed or indirectly absorbed, causing direct economic losses of 25 million yuan or more to depositors, it shall be found to be "an especially huge amount".
What are the circumstances under which the punishment can be mitigated or commuted if a suspected "non-smoking" crime exists?
According to Article 6 of 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 Fundraising, where a person illegally absorbs or indirectly absorbs deposits from the public, and actively returns the stolen goods and makes restitution before initiating a public prosecution to reduce the occurrence of damages, the punishment may be mitigated or commuted;Where stolen goods are returned and restitution is made after a public prosecution has been initiated, it may be considered as a sentencing circumstance.
Illegally absorbing or covertly absorbing public deposits, mainly used for normal production and business activities, and being able to clear the absorbed funds before initiating a public prosecution, may be exempted from criminal punishment;Where the circumstances are obviously minor and the harm is not great, it is not to be handled as a crime.
Based on its rich experience in handling cases, Beijing Guanling Law Firm has summarized the key points of defense in suspected "non-smoking" criminal cases, including:
1. Whether it is illegal. Whether the perpetrator has been approved by the relevant departments and sold it.
2. Whether it is public. Whether the perpetrator publicly publicized, publicly sold, and publicly absorbed funds from others through the Internet, leaflets, text messages, etc.
3. Whether it is tempting. Whether the actor promised to repay principal and interest or pay returns in money, kind, equity, or other means within a certain period of time.
4. Whether it is social. The object of absorbing deposits belongs to the public, that is, the unspecified objects of the society, or fixed relatives and friends.
5. Whether the perpetrator has the capacity for criminal responsibility. If the participants do not have the capacity for criminal responsibility due to their ability and mental state, they shall be given a lighter commutation or be exempted from punishment.
6. Whether the case has exceeded the time for prosecution. If the statute of limitations for prosecution has already expired when the public security organ files a case, the perpetrator should no longer be held criminally responsible.
Guanling Law Firm reminds readers and friends that as consumers, they must keep their eyes open and do not trust any investment channels. If you determine that you need to invest, you must do a good job of background checks, and objectively choose the investment method that suits you, if you have relatives and friends around you who have been taken compulsory measures by the public security organs for suspected "non-smoking" crimes, you should entrust a professional criminal lawyer to defend yourself in accordance with the law as soon as possible, and strive for the most favorable results.