Crime of establishing illegal absorption of public deposits needs to meet illegality、Public、Social and Righteous Seduction:，Among them, illegality is the key to distinguish legal financing and illegal fundraising。However, in judicial practice，Judgment usually uses "violation of national financial management regulations，The conclusion of the conclusion without the approval of relevant departments in accordance with the law "directly qualitative financing behavior as illegal，Less detailed reason。For this，Guiding cases issued by the Supreme People's Procuratorate (No. 64)，Essentials for accurate understanding of illegality have strong guidance significance。

[Basic Case] ​​The defendant Yang Weiguo established Zhejiang Wangzhou Industrial Co., Ltd. in 2013，In order to expand business, it established Wangzhou Wealth Investment Management and other companies in 2014，Publicity in the name of online lending information intermediary activities，Attract wealth management customers to transfer investment funds from bank accounts to virtual accounts on third -party payment platforms for investment，Wangzhou Group、Yang Weiguo and Wangzhou Group actually controlled the guarantee company to provide guarantee for the creditor's rights of wealth management customers。After that，Wangzhou Group allocates funds in the wealth management customer virtual account，Except for some of the borrowing funds and repayment of principal and interest funds, to the corresponding wealth management customer and credit customer account，The rest are used for production and operation and other activities。until April 20, 2016，Wangzhou Group absorbed about 6.419 billion yuan，It has not returned about 2.716 billion yuan for the principal，Number of non -returned principal credits 13499 people。

[Referees] The court of first instance believes，bet365 best casino games Wangzhou Group is named for information intermediary services，Actually engaged in directly or indirectly collecting funds、Even self -run or disguised behavior，The essence is to absorb public deposits。Wangzhou Group and Wangzhou Wealth do not have the qualifications of banking financial institutions，But the defendant Yang Weiguo still commands the company to promote the public，Absorption of huge amounts of funds，In fact, it can only be engaged in the absorption of public deposit business that can only be engaged in commercial banks，Violation of my country's financial management laws and regulations。Based on this，The court determined that the defendant Yang Weiguo committed illegally absorbing public deposits，June sentence sentenced to 9 years and 6 months，and fined 500,000 yuan。After the sentence，The defendant Yang Weiguo filed an appeal after the appeal，The first trial judgment has taken effect。

[Case Evaluation] According to the "Interpretation of Several Issues on Specific Application Laws on Trial of Illegal Funding Criminal Cases" (hereinafter referred to as "Illegal Funding Explanation")，illegal fundraising is "violation of national financial management laws，Actions to absorb funds to the public "，The specific manifestation of its illegality is "absorbing funds without the authorization of the relevant department in accordance with the law or borrowing legitimate operations"。The defendant argued，Wangzhou Group online platform operates normal P2P business，Credit customers really exist，No fund pool，Not absorbing public deposits，No financial license license is required，It can be carried out within the scope of the existing business license operation.。Visible，The focus of the controversy in this case is how to distinguish legal financing and illegal fund -raising，That is, whether online financing is not permitted in accordance with law，Is it illegal fund -raising that violates national financial management regulations? This，In -depth interpretation bet365 live casino games of guiding cases from the form and essence。

Guiding cases use dual form standards to demonstrate the illegality of the defendant's behavior。As a legal prisoner，The "illegality" in the crime of illegal absorption of public deposits depends on the provisions of administrative regulations，The qualitative standards of administrative regulations have undergone changes from single standards to dual standards。Early early in cracking down on illegal fundraising，Regardless of the "Commercial Bank Law" or relevant laws and regulations issued by the State Council or the People's Bank of China，Usually "illegality" as "not approved by the People's Bank of China", "not approved by relevant departments in accordance with the legal procedures" or "not approved by the relevant regulatory authorities in accordance with the law"。The only indicator of whether it is "approved by law" as the legality of judging financing behavior reflects the traditional thinking of maintaining financial order，But there are great defects in this standard。The development of socio -economic development requires a diversified financing model，If all folk financing requires special administrative licenses to be legal，Not only will it lead to a large number of private financing crimes，Still financial innovation，It is also difficult to meet the needs of private economy for social financing。This problem becomes particularly prominent after the rise of P2P。

In order to encourage financial innovation in the "approval system"，also to avoid financial risks of network financing alienation，Financial supervision departments have introduced multiple regulations after 2015，Clarified the regulatory rules of online lending。According to regulatory requirements，Online lending information intermediary agency shall go to the local financial management department for record after receiving the business license，But the registration registration does not constitute the ability to operate the network lending information intermediary agency、A degree of compliance、Recognition and evaluation of credit status。So，Filing Bet365 app download does not mean approval，The financing behavior of the platform does not obtain legitimacy due to filing，Whether it is legal to meet the specific rules in the rules。Obviously，The key to determining whether financing activities are legal are no longer whether it is approved or maybe，Instead of whether it meets the requirements of regulatory rules。At this time，The formal standards of illegal identification have been transformed from a simple "unlatic approval" to "double standards that are not approved+violations of national financial management laws and regulations"。In the mode of dual standard，"Unclabing" is no longer a single indicator for identifying illegality，Two standards can replace each other。Under the situation of the country's promulgation of relevant laws and regulations，financing behavior even without approval，But as long as it meets the relevant financial management regulations，Also meet the requirements of legitimacy。So，When determining whether online financing is illegal，It should be more concerned about whether it is in line with national financial management laws and regulations，instead of obtaining approval。

However, this change in administrative law has not attached great importance to judicial practice，The court of first instance in this case still adopts a single form standard，I believe that Wangzhou Group and Wangzhou Fortune do not have the qualifications of banking financial institutions，The business that cannot be engaged in the absorption of public deposits without the approval of the banking supervision and management agency of the State Council。Guiding cases in addition to this，Further emphasize "accurately grasp laws and regulations、The boundary determined by the financial management regulations、Standard and Principles Spirit，The nature of the financing borrowing activities accurately "。Guiding cases obviously absorb the dual forms of administrative law，At the practice level, the referee in the referee of the requirements for illegality is the direction bet365 live casino games of reason。Except for the case，The Supreme People's Court of 2019、Supreme People's Procuratorate、The Opinions on Several Issues on Crime Criminal Cases issued by the Ministry of Public Security clearly point out，The "illegality" of identifying illegal fundraising shall be based on national financial management laws and regulations; in 2021, the State Council's "Regulations on the Prevention and Disposal illegal Funding" also define illegality as "without the financial management department of the State Council in accordance with law or violated the state in violation of the state. Financial management regulations "。This can be seen，Whether at the level of judicial practice or legal norm，The form of illegal elements The definition has entered the dual standard era。

This guiding case also proposes the argumentation idea of ​​the nature of financing behavior in substantive level。The theoretical world is generally believed，As long as the fundraising funds are mainly used for production and operation，Even if it meets the form of form，It should not be identified as the crime of illegal absorption of public deposits。If you cannot accurately define the connotation of illegality，The scope of application of the crime may not be expanded。The reason why the state is prohibited from unruly institutions from absorbing public deposits，In addition to maintaining financial order，More important is to prevent financial risks。In absorbing deposit activities，The suction storage party must fulfill the commitment to repay the principal and interest，The absorbed funds must be used for profit -making activities，Once the business fails or the capital chain is broken, it may threaten public funds for security。For this，The state established a deposit reserve for commercial banks、deposit insurance、Loan review、Risk supervision system, including loan loss reserve, etc.，To avoid crowding、Systemic financial risks such as bad debts。Institutions that have not been included bet365 Play online games in the regulatory system are carried out absorption for the public、During the loan business，Due to lack of risk management capabilities and regulatory constraints，It is likely to cause financial risks and endanger public capital security，This is exactly the essence of illegality。

For this，Guiding cases also point out，illegal control of online lending agency、Dignation funds will constitute illegal absorption of public deposits，Point out the core connotation of illegal financing of the Internet。For online financing，If the platform adheres to information intermediary status，Then every borrower and borrower will have a mutually independent lending relationship based on the platform，Even if the borrower breaks the contract, it will not affect others。And once the platform breaks through the status of the information intermediary, it has gathered and punished funds，It becomes a controller for memory and lending。If the online financing platform relies on its strong radiation capabilities to control the funds dominated by the public，In the absence of supervision，It is easy to run away、Various risks such as fund chain breaks，Discarded public property losses，Financing behavior meets the substantial standards of illegal requirements。Contrary to，If the platform can accept effective supervision from the financial management department，Even if it does not meet the requirements of financial management regulations in form，But the risk of its financing behavior is effectively controlled，Instead of satisfying the requirements of crimes，No illegal。

In judicial practice in the past 30 years，Due to illegal elements, the definition is unknown，The crime of illegally absorbing public deposits has been unable to escape the fate of "pocket crime" since its birth。The increasingly improved of national financial management laws and regulations，Provides a more sufficient administrative law basis for the definition of financing activities。and the continuous deepening of financial reform，It also prompts the criminal bet365 live casino games law to gradually abandon the protection of simple financial order，Steering to emphasize curbing financial risks。Double standards based on form and substance to understand illegal elements，Not only does it conform to the development of the times，Can be more accurate for judicial practice、Reasonable application of illegal absorption of public deposits provides theoretical support。

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(Author Unit: Chinese Ocean University Law School)