Defendant Zeng XX is the actual controller of Company A (established in 2005), and the company operates a brand chain restaurant in a certain city. Company B operates the "XX Bao" equity crowdfunding platform (the actual place of operation is located in Chaoyang District, Beijing), and the person in charge is Wang. From August 2015 to 2016, Company A and Company B signed the Financing Intermediary Agreement several times, stipulating that Company A would entrust Company B to conduct financing, and Company B would charge 4% or 5% of the financing amount as intermediary fees. Company B publishes the financing project of Company A on the equity crowdfunding platform it operates, and conducts crowdfunding to the public. In the name of its C Center (Limited Partnership), it signed an "Individual Investment Agreement" with investors, promising fixed income and returning the principal at maturity. Company A presents special product gift packages or Xiamen travel gift packages to investors who invest in the company's projects.
Center C and Company A jointly establish a partnership, and Center C subscribes for the share of capital contribution held by the actual investor and invests the money into the project enterprise. The project team pays 1% of the fixed income every month and distributes the residual profit every year. After the expiration of 12 months of the investment period, the actual investor can apply for withdrawal of the investment, and Center C will give priority to transferring the shares to other investors, and if it cannot be transferred, Company A will repurchase the share (investment principal). According to statistics, more than 400 investors invested a total of more than 1,800 yuan in the project of Company A, and Company B transferred more than 1,700 yuan to Company A after deducting the corresponding intermediary fees. Company A then used the money for the operation of the catering store.
In 2017, because Company A was unable to repurchase the investment principal in accordance with the partnership agreement, Center C filed a civil lawsuit with Court H. The court of H found that the two parties were in a joint venture contractual relationship, and for the project that was still in operation, it ruled that Company A should pay the repurchase price and investment income, and that the project that had been closed should be dissolved and liquidated according to the contract, so it rejected the litigation claim of Center C requiring A to repurchase all the equity held by it and pay monthly fixed income. After the investor reported the case to the public security organs, the public security organs filed a case against Company B for investigation and arrested three staff members, including Hao.
In the course of the proceedings, the People's Procuratorate of Chaoyang District, Beijing Municipality, requested that the indictment against the defendant Zeng XX be withdrawn on the grounds that the evidence was insufficient and did not meet the requirements for prosecution. On July 30, 2021, the Beijing Chaoyang District People's Court issued the (2019) Jing 0105 Xing Chu No. 1754 Criminal Ruling, allowing the Beijing Chaoyang District People's Procuratorate to withdraw the indictment against the defendant Zeng XX. After the verdict was pronounced, there was no appeal, and the verdict took legal effect.
The effective judgment of the court held that on July 18, 2015, the People's Bank of China and other ten ministries and commissions issued the Guiding Opinions on Promoting the Healthy Development of Internet Finance (hereinafter referred to as the "Guiding Opinions"), pointing out that equity crowdfunding financing is "the activity of public small equity financing through the Internet". According to the Opinions, equity crowdfunding financing is an open and small amount of financing activities for small and micro enterprises to specific investors through Internet crowdfunding platforms in return for equity. In terms of legal obligations, the financier has the obligation to disclose information, the crowdfunding platform provides intermediary referral services for both parties to the financing, and the investor and the financier share the benefits and risks of the investment project. The financier in equity crowdfunding financing shall be a small and micro enterprise, with an obligation to disclose information, and shall not promise to repay principal and interest to investors, and the financing funds shall be invested in actual production and operation projects. If the financier does not have the qualifications for equity crowdfunding, and promises to repay the principal and interest to unspecified investors through public publicity in the name of carrying out equity crowdfunding financing, its conduct constitutes the crime of illegally absorbing deposits from the public, and if it is not putting the raised funds into production and operation, but illegally occupying it, it will constitute the crime of fundraising fraud.
1) Company A is a small and micro enterprise and can conduct small financing through an Internet equity crowdfunding platform. The "Guiding Opinions" clearly point out that the financing party of equity crowdfunding should be small and micro enterprises. Article 92 of the Regulations for the Implementation of the Enterprise Income Tax Law of the People's Republic of China clarifies the conditions for small and micro enterprises, if the financing enterprise is an industrial enterprise, the annual taxable income shall not exceed 300,000 yuan, the number of employees shall not exceed 100 people, and the total assets shall not exceed 30 million yuan, while other enterprises shall require the annual taxable income not to exceed 300,000 yuan, the number of employees not to exceed 80 people, and the total assets to not exceed 10 million yuan. In this case, Company A, operated by Zeng XX, is qualified to carry out equity crowdfunding financing as a small and micro enterprise with an annual taxable income of no more than 300,000 yuan, no more than 80 employees, and no more than 10 million yuan in total assets.
2) Company A's financing through a crowdfunding platform does not mean that it has the subjective intention to illegally absorb deposits from the public. If the financier subjectively knows about the criminal conduct of the crowdfunding platform, but still helps the platform expand the scale of illegally absorbing public funds through means such as platform publicity or providing investment gifts, and then uses the funds, it shall be found to be an aider in a joint crime. If the financier subjectively does not have an understanding of the crowdfunding platform's financing model, or the financier objectively does not participate in the specific aspects of the financing, it must not be determined that it constitutes a joint crime on the grounds that the financier used the funds. Company B was not established for the purpose of financing Company A, Zeng Moumou did not participate in the proposal and construction of Company B's operating model, etc., and the existing evidence cannot prove that Zeng Moumou was aware of the specific financing model of Company B, or knew that the funds were ** from "unspecified" investors, and it cannot be determined that Zeng Moumou had the criminal intent to illegally absorb deposits from the public.
3) Company A, as the financier, did not participate in the illegal absorption of deposits from the public. First, Company A did not promise to repay the principal and interest to the investors. The effective civil judgment held that the relationship between Company A and Center C was a joint venture contract, which was in the nature of sharing profits and losses and risks, and was not a relationship of repayment of principal and interest. The crowdfunding platform signed an investment agreement with the investor in the name of Center C, but promised to repay the principal and interest to the investor. Second, Company A's act of providing investment projects and investment gift packages cannot be evaluated as an act of helping to illegally absorb money from the public. In this case, the investment project provided by Company A was real, and it was not a fictitious project or a loan project in the name of the project to help raise funds. Company A's act of providing an investment package at the request of Company B cannot be evaluated as an act of aiding a crime on the premise of lack of criminal intent.
To sum up, in this case, Company A, operated by Zeng XX, as a small and micro enterprise, is qualified to carry out equity crowdfunding financing, and the equity crowdfunding financing platform has the obligation to find qualified investors, and Zeng XX does not have a clear understanding of whether the investors are "specific"; The relationship between Company A and the investor is a joint venture contractual relationship of joint profit and loss, and there is no commitment to repay the principal and interest; Company A's act of providing an investment gift package at the request of the platform can only be determined to be a commercial act of paying the cost of capital on the premise of lack of criminal intent; Based on the needs of production and operation, Company A financed with real investment projects, and the financing funds were also invested in production and operation, and there was no illegal possession of the fund-raising funds. The court held that because the public prosecution's accusation that Zeng Moumou constituted the crime of illegally absorbing public deposits did not meet the standard of credible and sufficient evidence, Zeng Moumou's conduct did not constitute a crime. The procuratorate's application to withdraw the prosecution complies with the provisions of the law and should be granted.
The gist of the referee
Small and micro enterprises, as financiers, shall perform their information disclosure obligations when conducting public and small-amount financing through Internet crowdfunding platforms, and shall not promise to investors to repay principal and interest. Where an internet crowdfunding platform illegally absorbs deposits from the public by promising to repay principal and interest to an unspecified public in the course of public financing, the principle of consistency between subjectivity and objectivity should be adhered to in determining the criminal liability of the financier, that is, the financier subjectively has the criminal intent to illegally absorb deposits from the public, and objectively carries out the act of helping to expand the scale of fundraising, otherwise the financier shall not be found to have committed a crime.
Associate indexes. Article 176 of the Criminal Law of the People's Republic of China.
First instance: Beijing Chaoyang District People's Court (2019) Jing 0105 Xingchu No. 1754 Criminal Ruling (July 30, 2021).