|
|
|
|
|
|
|
|
|
|
|
|
|
| Minutes of the Symposiums of the Supreme People's Procuratorate on Issues concerning Handling Internet-related Financial Crime Cases | | 最高人民检察院关于办理涉互联网金融犯罪案件有关问题座谈会纪要 |
| (No. 14 [2017] of the Supreme People's Procuratorate, June 2, 2017) | | （高检诉[2017]14号 2017年6月2日） |
| Internet finance is a new type of financial business formed in the process of integrating finance and the Internet. Developing internet finance plays a positive role in implementing the innovation-driven development strategy at a faster pace, advancing the supply-side structural reform and promoting the transformation and upgrading of economy. Nevertheless, in the rapid expansion of internet finance, some institutions and business types deviated from correct direction, and some even conducted illegal, criminal activities in the name of "financial innovation," such as illegal fund-raising and financial fraud, which have gravely disturbed financial administration order and injured the lawful rights and interests of the people. In April 2016, the State Council arranged and made special rectification of internet financial risks to rectify the acts that violate laws and regulations in a concentrated manner and prevent and resolve internet financial risks. The procuratorial departments at all levels vigorously participated in the special rectification and lawfully handled internet-related financial crime cases in the procuratorial part. With respect to the new situations and problems encountered in case handling, the Prosecution Department of the Supreme People's Procuratorate held symposiums in Kunming, Shanghai and Fuzhou, successively, to make an in-depth research of the issues as to the nature of the act, application of law, examination of evidence, and scope of prosecution, among others, encountered in handling internet-related financial crime cases. The minutes are as follows: | | 互联网金融是金融与互联网相互融合形成的新型金融业务模式。发展互联网金融，对加快实施创新驱动发展战略、推进供给侧结构性改革、促进经济转型升级具有积极作用。但是，在互联网金融快速发展过程中，部分机构、业态偏离了正确方向，有些甚至打着"金融创新"的幌子进行非法集资、金融诈骗等违法犯罪活动，严重扰乱了金融管理秩序，侵害了人民群众合法权益。2016 年4 月，国务院部署开展了互联网金融风险专项整治工作，集中整治违法违规行为，防范和化解互联网金融风险。各级检察机关积极参与专项整治工作，依法办理进入检察环节的涉互联网金融犯罪案件。针对办案中遇到的新情况、新问题，高检院公诉厅先后在昆明、上海、福州召开座谈会，对办理涉互联网金融犯罪案件中遇到的有关行为性质、法律适用、证据审查、追诉范围等问题进行了深入研究。纪要如下： |
| I. Basic requirements for handling internet-related financial crime cases | | 一、办理涉互联网金融犯罪案件的基本要求 |
| Promoting and guaranteeing the regulated and sound development of internet finance is important content that procuratorial departments contribute to social and economic development. The prosecution bodies of the procuratorial departments in all regions shall fully recognize the importance, urgency and complexity of preventing and resolving internet financial risks, based on the procuratorial functions, vigorously participate in the special rectification of internet financial risks, and effectively prevent and lawfully punish internet financial crimes so as to practically maintain the lawful rights and interests of the people and safeguard national financial security. | | 促进和保障互联网金融规范健康发展，是检察机关服务经济社会发展的重要内容。各地检察机关公诉部门应当充分认识防范和化解互联网金融风险的重要性、紧迫性和复杂性，立足检察职能，积极参与互联网金融风险专项整治工作，有效预防、依法惩治涉互联网金融犯罪，切实维护人民群众合法权益，维护国家金融安全。 |
| (1) Accurately recognize the nature of internet finance. Internet finance is finance by nature, and its potential risks are by no means different from those of traditional finance and might even worsen due to the Internet. In accordance with financial administration laws in force, the legal nature of various financial activities and business types shall be accurately judged, and the boundary between financial innovation and financial breaches of law and crimes shall be accurately defined. In handling internet-related financial crime cases, criminal laws and financial administration laws and regulations in operation shall be the basis for determining whether the essential elements, such as "breaching the provisions issued by the state" and "without the approval of the relevant competent department of the state," are satisfied. In relation to the various internet financial activities, the substance of the acts shall be analyzed in depth to determine their nature and thus to accurately identify crime and non-crime, types of crimes, gravity of crime, and crackdown and protection, and prevent confusion caused by mechanical understanding of the so-called "internet financial innovation" appearance. | | 1 准确认识互联网金融的本质。互联网金融的本质仍然是金融，其潜在的风险与传统金融没有区别，甚至还可能因互联网的作用而被放大。要依据现有的金融管理法律规定，依法准确判断各类金融活动、金融业态的法律性质，准确界定金融创新和金融违法犯罪的界限。在办理涉互联网金融犯罪案件时，判断是否符合"违反国家规定""未经有关国家主管部门批准"等要件时，应当以现行刑事法律和金融管理法律法规为依据。对各种类型互联网金融活动，要深入剖析行为实质并据此判断其性质，从而准确区分罪与非罪、此罪与彼罪、罪轻与罪重、打击与保护的界限，不能机械地被所谓"互联网金融创新"表象所迷惑。 |
| (2) Properly understanding the scope and boundary of prosecution. Where there are many people involved in internet-related financial crime cases, they shall be handled by category according to the principle of differentiated treatment, risks shall be disposed of and resolved by comprehensively using prosecution and non-penal means, and a minority shall be cracked down upon while the rest shall be educated and saved. The principle of unity of subject and object shall be adhered to, and the gravity of liability and necessity of prosecution shall be comprehensively judged based on the subjective and objective circumstances, including the status and role of the criminal suspect in the criminal activities, case-related amount of money, results of harm, and subjective fault, etc. so as to achieve the match between crime and liability and appropriate punishment for crime. A person who is suspected of a serious crime, is seriously, subjectively malicious, and played a major role in the crime, especially a core executive or the backbone, shall be cracked down upon more severely in accordance with law; a person who is suspected of a lenient crime, is lightly, subjectively malicious, and played a minor role in the crime shall be handled leniently in accordance with law. | | 2 妥善把握刑事追诉的范围和边界。涉互联网金融犯罪案件涉案人员众多，要按照区别对待的原则分类处理，综合运用刑事追诉和非刑事手段处置和化解风险，打击少数、教育挽救大多数。要坚持主客观相统一的原则，根据犯罪嫌疑人在犯罪活动中的地位作用、涉案数额、危害结果、主观过错等主客观情节，综合判断责任轻重及刑事追诉的必要性，做到罪责适应、罚当其罪。对犯罪情节严重、主观恶性大、在犯罪中起主要作用的人员，特别是核心管理层人员和骨干人员，依法从严打击；对犯罪情节相对较轻、主观恶性较小、在犯罪中起次要作用的人员依法从宽处理。 |
| (3) Paying attention to overall and coordinated advancement of cases. Where an internet-related financial crime is conspicuously cross-regional, the prosecution bodies of the procuratorial departments in all regions involved shall effectively handle the cases of their respective regions according to the requirement of "unifying coordination of case handling, case command and asset disposition, separating investigation from indictment, separating implementation from stability maintenance" (hereinafter referred as "unity and separation requirement"), strengthen horizontal and vertical connections, advance case handling in an unified and coordinated manner under the guidance of higher-level, particularly provincial-level, procuratorial departments, and ensure the relative balance and unity of the handling results of local cases. A cross-district or cross-county case shall be coordinated by the procuratorate at the prefecture city level in an overall manner, a cross-prefecture city case shall be uniformly coordinated by the procuratorate at the provincial level, and a cross-province case shall be uniformly coordinated by the prosecution department of the Supreme People's Procuratorate. The prosecution bodies of the procuratorial departments at all levels shall strengthen communications with the public security departments, local financial offices and other relevant entities and the internal bodies of investigation supervision and prosecution complaint, etc., establish and improve a case information notification mechanism, have timely control of case filing, investigation, approval of arrest, public complaint, etc. of the major cases, conduct the work such as advance intervention in investigation in good time, and file reports to superior procuratorates in a timely manner. The prosecution bodies of the procuratorial departments at provincial level shall take active action in the work, voluntarily obtain the information of cases that have a significant bearing on society, research and make work plans, coordinate and solve the problems encountered in case handling in an overall manner, and make reports on major, difficult or complicated problems to the Supreme People's Procuratorate without delay. | | 3 注重案件统筹协调推进。涉互联网金融犯罪跨区域特征明显，各地检察机关公诉部门要按照"统一办案协调、统一案件指挥、统一资产处置、分别侦查诉讼、分别落实维稳"（下称"三统两分"）的要求分别处理好辖区内案件，加强横向、纵向联系，在上级检察机关特别是省级检察院的指导下统一协调推进办案工作，确保辖区内案件处理结果相对平衡统一。跨区县案件由地市级检察院统筹协调，跨地市案件由省级检察院统一协调，跨省案件由高检院公诉厅统一协调。各级检察机关公诉部门要加强与公安机关、地方金融办等相关单位以及检察机关内部侦监、控申等部门的联系，建立健全案件信息通报机制，及时掌握重大案件的立案、侦查、批捕、信访等情况，适时开展提前介入侦查等工作，并及时上报上级检察院。省级检察院公诉部门要发挥工作主动性，主动掌握社会影响大的案件情况，研究制定工作方案，统筹协调解决办案中遇到的问题，重大、疑难、复杂问题要及时向高检院报告。 |
| (4) Adhering to the organic unity of the "three effects" of judicial case handling. Internet-related financial crimes have an extensive impact, and all sectors of society, especially investors, pay much attention to case handling. The prosecution bodies of the procuratorial departments shall, from the perspective of favoring the lawful and properly handling the whole case, effectively conduct the work at all phases from guiding evidence collection by intervening in investigation in advance, prosecution examination, and appearing in court for prosecution, lawfully and soundly handle major sensitive issues, and abstain from mechanical judicature and handling cases for the sake of the cases themselves. In addition, case handling shall be closely integrated with the lawful rights and interests of investors, the work including explanation of law and causes, risk prevention and control, recovery of illegal gains, and maintenance of stability shall be simultaneously undertaken, and the organic unity of legal, social and political effects of judicial case handling shall be realized. | | 4 坚持司法办案"三个效果"有机统一。涉互联网金融犯罪影响广泛，社会各界特别是投资人群体十分关注案件处理。各级检察机关公诉部门要从有利于全案依法妥善处置的角度出发，切实做好提前介入侦查引导取证、审查起诉、出庭公诉等各个阶段的工作，依法妥善处理重大敏感问题，不能机械司法、就案办案。同时，要把办案工作与保障投资人合法权益紧密结合起来，同步做好释法说理、风险防控、追赃挽损、维护稳定等工作，努力实现司法办案的法律效果、社会效果、政治效果有机统一。 |
| II. Accurately defining the legal nature of internet-related financial acts | | 二、准确界定涉互联网金融行为法律性质 |
| (5) Internet finance involves multiple financial fields, such as peer-to-peer online lending, equity-based investment crowdfunding, third-party payment, internet insurance, asset management through the Internet, and cross-industry financial business, features diversified modes of acts, and relates to complicated legal relationships. Illegal and criminal acts are committed pretty much in disguised forms and are confusing, involve a broad range, and have a great bearing on society, and their legal nature and applicable offences under the Criminal Law shall be accurately defined according to the substantial characteristics and social harm of the criminal acts. | | 5 互联网金融涉及P2P 网络借贷、股权众筹、第三方支付、互联网保险以及通过互联网开展资产管理及跨界从事金融业务等多个金融领域，行为方式多样，所涉法律关系复杂。违法犯罪行为隐蔽性、迷惑性强，波及面广，社会影响大，要根据犯罪行为的实质特征和社会危害，准确界定行为的法律性质和刑法适用的罪名。 |
| 1. Determination of the act of illegally pooling public deposits | | （一）非法吸收公众存款行为的认定 |
| (6) Anyone who, in internet-related financial activities without the lawful approval of the relevant department, gives public publicity, raises funds from the general public, and promises to return the principal and pay interest within a given period shall be held criminally liable in accordance with the law. In particular, priority should be place on examining whether the entity relating to the internet-related financial activities is under the circumstances in which its pooling or amassing of funds exposes the money of investors to misappropriation, embezzlement and other major risks. | | 6 涉互联网金融活动在未经有关部门依法批准的情形下，公开宣传并向不特定公众吸收资金，承诺在一定期限内还本付息的，应当依法追究刑事责任。其中，应重点审查互联网金融活动相关主体是否存在归集资金、沉淀资金，致使投资人资金存在被挪用、侵占等重大风险等情形。 |
| (7) Internet finance is by nature finance, and the major legal basis to determine whether it is "without the lawful approval of the relevant department," i.e. whether the act is illegal, is the Commercial Bank Law, the Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities (Order No. 247, State Council), and other effective financial administration laws and provisions. | | 7 互联网金融的本质是金融，判断其是否属于"未经有关部门依法批准"，即行为是否具有非法性的主要法律依据是《商业银行法》、《非法金融机构和非法金融业务活动取缔办法》（国务院令第247 号）等现行有效的金融管理法律规定。 |
| (8) In relation to following acts of illegally raising funds from the public in the online lending field, those performing the acts shall be respectively held criminally liable for the crime of illegally pooling public deposits: | | 8 对以下网络借贷领域的非法吸收公众资金的行为，应当以非法吸收公众存款罪分别追究相关行为主体的刑事责任： |
| i. An intermediary agency which, in the name of providing information intermediary services, performs such acts as direct or indirect pooling of funds and even fund-raising for its own projects or doing so in disguise shall be held criminally liable in accordance with law. Special attention shall be paid to identifying the act of fund-raising for one's own projects in disguise, and an intermediary agency which raises funds for its own projects by splitting the term of a financing project, transferring claims or any other means shall be determined to illegally pool public deposits. | | （1）中介机构以提供信息中介服务为名，实际从事直接或间接归集资金、甚至自融或变相自融等行为，应当依法追究中介机构的刑事责任。特别要注意识别变相自融行为，如中介机构通过拆分融资项目期限、实行债权转让等方式为自己吸收资金的，应当认定为非法吸收公众存款。 |
| ii. In any of the following cases, the intermediary agency and the borrower shall be held criminally liable in accordance with law: First, an intermediary agency conspires with a borrower or, notwithstanding knowing that the borrower has breached any of the regulations, provides service for the latter's illegal pooling of public deposits; an intermediary agency conspires with a borrower to raise funds from the general public by giving credit guarantee to the latter, conducting loan business at a physical venue instead of an electronic channel, or any other means in violation of the regulations. Second, both parties conspire to raise funds for the borrower by splitting the term of a financing project, transferring claims or any other means. When an intermediary agency or borrower is prosecuted, its criminal liability shall be determined based on its status and role in the illegal fund-raising. An intermediary agency which wantonly organizes borrowers to illegally raise funds, charges a large amount of money therefor and has serious circumstances notwithstanding that it has not directly pooled funds may be determined to be principal. | | （2）中介机构与借款人存在以下情形之一的，应当依法追究刑事责任：①中介机构与借款人合谋或者明知借款人存在违规情形，仍为其非法吸收公众存款提供服务的；中介机构与借款人合谋，采取向出借人提供信用担保、通过电子渠道以外的物理场所开展借贷业务等违规方式向社会公众吸收资金的；②双方合谋通过拆分融资项目期限、实行债权转让等方式为借款人吸收资金的。在对中介机构、借款人进行追诉时，应根据各自在非法集资中的地位、作用确定其刑事责任。中介机构虽然没有直接吸收资金，但是通过大肆组织借款人开展非法集资并从中收取费用数额巨大、情节严重的，可以认定为主犯。 |
| iii. Where a borrower intentionally hides facts, breaches provisions, and publishes borrowing information on several online lending platforms in its own name or in the name of another person, the borrower shall be held criminally liable according to law if the total amount of the borrowings exceeds the quota, or if the use of the pooled funds in stock investment, shadow margin lending, futures contracts and other high-risk industries causes a heavy loss and social impact. Where a borrower uses the borrowed funds mainly for normal production and operation and is able to return the pooled funds, the funds pooling shall not be handled as a crime. | | （3）借款人故意隐瞒事实，违反规定，以自己名义或借用他人名义利用多个网络借贷平台发布借款信息，借款总额超过规定的最高限额，或将吸收资金用于明确禁止的投资股票、场外配资、期货合约等高风险行业，造成重大损失和社会影响的，应当依法追究借款人的刑事责任。对于借款人将借款主要用于正常的生产经营活动，能够及时清退所吸收资金，不作为犯罪处理。 |
(9) In the crime of illegally pooling public deposits, awareness of the prohibitive provisions of law is not required in principle to be an essential element to determine his subjective intent. In particular, a criminal suspect who has certain work experience or professional background relating to financial activities or has been appointed to a given executive office in the criminal activities should have known the relevant financial administration provisions in law, and if evidence proves that the act actually performed by him which should have been approved, the act is objectively illegal, and he may be determined in principle to have the subjective intent to illegally pool public deposits. In proving the subjective intent of a criminal suspect, such evidence as the job information, work experience, professional background, training received, and former employers of the criminal suspect or the punishment imposed on him resulting from his undertaking the acts of the same kind shall be collected and used to prove that the defenses made by him, such as "he was unaware that the relevant act was forbidden by law and thus had no subjective intent to illegally pool public deposits," are untenable. In addition, the following evidence may be collected and used to further confirm that the criminal suspect knew or should have known that the act he has performed was illegal: the evidence relating to the fact that he intentionally dodged the law to evade regulation, including false relative or friend confirmation signed between him or his subordinate, at his request, and an investor, frequent change of promotional language to evade regulation, inconsistency between the actual promotional content and promotional language and the actual operation, deliberate exaggeration of company's repayment capability to investors, and introduction to or acceptance of methods to dodge the law in training or courses.
．．．．．． | | 9 在非法吸收公众存款罪中，原则上认定主观故意并不要求以明知法律的禁止性规定为要件。特别是具备一定涉金融活动相关从业经历、专业背景或在犯罪活动中担任一定管理职务的犯罪嫌疑人，应当知晓相关金融法律管理规定，如果有证据证明其实际从事的行为应当批准而未经批准，行为在客观上具有非法性，原则上就可以认定其具有非法吸收公众存款的主观故意。在证明犯罪嫌疑人的主观故意时，可以收集运用犯罪嫌疑人的任职情况、职业经历、专业背景、培训经历、此前任职单位或者其本人因从事同类行为受到处罚情况等证据，证明犯罪嫌疑人提出的"不知道相关行为被法律所禁止，故不具有非法吸收公众存款的主观故意"等辩解不能成立。除此之外，还可以收集运用以下证据进一步印证犯罪嫌疑人知道或应当知道其所从事行为具有非法性，比如犯罪嫌疑人故意规避法律以逃避监管的相关证据：自己或要求下属与投资人签订虚假的亲友关系确认书，频繁更换宣传用语逃避监管，实际推介内容与宣传用语、实际经营状况不一致，刻意向投资人夸大公司兑付能力，在培训课程中传授或接受规避法律的方法，等等。
．．．．．． |
|
Dear visitor, as a premium member of this database, you will get complete access to all content.Please go premium and get more.
1. To become a premium member, please call 400-810-8266 Ext. 171.
2. Binding to the account with access to this database.
3. Apply for a trial account.
4. To get instant access to a document, you can Pay Amount 【￥1000.00】 for your single purchase. | |
您好：您现在要进入的是北大法宝英文库会员专区。
如您是我们英文用户可直接 登录，进入会员专区查询您所需要的信息；如您还不是我们 的英文用户；您可通过网上支付进行单篇购买，支付成功后即可立即查看本篇内容。
Tel: +86 (10) 82689699, +86 (10) 82668266 ext. 153
Mobile: +86 13311570713
Fax: +86 (10) 82668268
E-mail:info@chinalawinfo.com
|
| | | | | | | | |
Scan QR Code and Read on Mobile
|
|
|
|
|
|
Message: Please kindly comment on the present translation.
|
|
|
|
|
|
|
|
|
Translations are by lawinfochina.com, and we retain exclusive copyright over content
found on our website except for content we publish as authorized by respective copyright
owners or content that is publicly available from government sources.
Due to differences in language, legal systems, and culture, English translations
of Chinese law are for reference purposes only. Please use the official Chinese-language
versions as the final authority. Lawinfochina.com and its staff will not be directly
or indirectly liable for use of materials found on this website.
We welcome your comments and suggestions, which assist us in continuing to improve
the quality of our materials as we dynamically expand content.
|
|
|
|
|
|