●Illegal fund-raising cases occur frequently, and the amounts involved are particularly huge. In such cases, the recovery and disposal of property involved in the case have always had problems such as low recovery rates. It is especially difficult to recover the third party invol

　●Illegal fund-raising cases occur frequently, and the amounts involved are particularly huge. However, the recovery and disposal of the property involved in such cases has always had problems such as low recovery rates. It is especially difficult to recover the third party involved in the loan.

　●Compared with characterization and sentencing, recovery of stolen goods and damages has become a bigger problem faced by judicial organs in illegal fund-raising cases.

　●Based on the analysis of facts, law and balance of interests, it is more appropriate to classify the third-party lending relationship involved in the case as an illegal fund-raising crime.

In recent years, illegal fund-raising cases have occurred frequently, and the amounts involved are particularly huge. However, the recovery and disposal of the property involved in such cases have always had problems such as low recovery rates. It is especially difficult to recover the third party involved in the loan. . Since the property rights of the third party involved in the loan cannot be recovered, which directly leads to the inability to fully protect the property rights of the fund-raising participants, it is easy to cause public opinion and the risk of petitions by the fund-raising participants, and is not conducive to the protection of legal property and the optimization of the business environment. It should be implemented in judicial practice Improve the recovery and handling mechanism for the property of third parties involved in borrowing money.

The current judicial dilemma of recovering the property of third parties involved in loan cases is difficult

First, it is difficult to balance interests. It is difficult to balance the interest demands of fund-raising participants and fund-raisers with the considerations of judicial authorities in handling cases. For fund-raising participants, they not only hope to obtain maximum interest protection through civil judgments, but also want to recover the stolen goods and recover losses to the maximum extent through criminal proceedings. For fundraisers, they hope to recover compensation through civil lawsuits, but they often hesitate to file lawsuits. In practice, before a criminal case is filed, most civil lawsuits filed by judicial organs (courts) against fund-raising participants and fund-raisers are accepted. Once a criminal case is filed and a crime may be suspected, the court's approach is generally to dismiss the prosecution.

Second, program conversion and connection are difficult. Illegal fund-raising cases are mostly criminal and civil cases. There are often inconsistencies in the identification of the same facts in criminal and civil litigation. In addition, relevant laws and judicial interpretations are imperfect, resulting in the conversion between criminal procedures and civil procedures in illegal fund-raising cases. and connection difficulties. Especially before the criminal case is filed, the fund-raising participants have already filed civil lawsuits and judgments, and even entered the property execution stage. If it is found that a crime may have been committed, should the judgment be revoked? If it is revoked, will it affect the authority and stability of judicial decisions? Will performing rollback cause new problems? These are real issues worthy of attention.

Third, it is difficult to dispose of the property involved. Compared with characterization and sentencing, recovery of stolen goods and damages has become a bigger problem faced by judicial organs in illegal fund-raising cases. The key to recovering stolen goods and recovering losses is that the property involved in the case can be recognized as stolen property. In illegal fund-raising cases, if the money lent to a third party can be identified as stolen money, it will be recovered through criminal measures; if the third party obtains it in good faith and denies the nature of the stolen money, the criminal recovery path will be interrupted.

Re-examination of the difficulty in recovering the property of third parties involved in borrowing cases

The essence of illegal fund-raising is a financing collection consisting of multiple independent loan debts. Each independent loan debt is based on a private lending contract relationship. Fund-raising The investor then lends the absorbed funds to a third party in the form of a loan contract. Whether the two facts of one in and one out are "the same fact" directly determines whether the property of the third party involved in the loan can be recovered. To determine whether it belongs to the "same fact", we must abide by the basic facts and laws, and also conduct comprehensive analysis and differentiation to achieve a balance that maximizes the interests of different stakeholders.

First, the identification of the lending relationship between illegal fund-raising participants and fund-raisers.The November 2019 " National Court Civil and Commercial Trial Work Conference Minutes " (hereinafter referred to as the "Nine People's Conference Minutes"), inherited the March 2014 " Opinions on Several Issues Concerning the Application of Law in Handling Illegal Fund-raising Criminal Cases " ( (hereinafter referred to as the "Applicable Opinions") and the January 2019 "Opinions on Several Issues Concerning the Handling of Criminal Cases of Illegal Fund-raising" (hereinafter referred to as the "Handling Opinions") regarding private lending and illegal lending between fund-raising participants and fund-raisers in economic crimes involving crowds The determination that the crime of fund-raising is related to the "same fact" makes it clear that the protection of the civil rights of fund-raising participants should be resolved through criminal recovery and compensation. Investigating the root cause, there are many reasons why criminal recovery is stronger and more conducive to recovering the losses of fund-raising participants. However, there is a deeper legal inevitability hidden in it, that is, the scope of protection of property rights under civil law is greater than that under criminal law. In illegal fund-raising, the interest returns earned by fund-raising participants need to be offset against the uncollected principal. However, investment interest is protected under civil law.

Second, the identification of the lending relationship that requires the fundraiser to assume obligations. Article 129 of the Minutes of the Ninth People's Conference stipulates that "if a party requests the above-mentioned subjects to bear civil liability due to civil disputes such as leasing, sales, financial loans, etc. that have nothing to do with the above-mentioned economic crimes involving people, the People's Court shall accept the case." This provision This shows the Supreme Court’s attitude towards decriminalizing “partial facts” that are outside the loan relationship between fund-raising participants and fund-raisers but are related to fund-raising activities. The author believes that excluding these facts from illegal fund-raising crimes is mainly due to two considerations: first, to maintain the stability of market transaction order and ensure the normal operation of contracts concluded based on the free will of both parties; second, this type of civil judgment belongs to The "general civil debts" of the fundraiser, according to Article 13 of the "Several Provisions on the Partial Execution of Property-Involved Criminal Judgments", are distributed after "compensation for the losses of the victim", and Article 9 of the "Handling Opinions" further clarifies "Reimbursement of losses to fund-raising participants generally takes precedence over other civil debts, fines, and property confiscation." Therefore, identifying the fact that the fund raiser assumes obligations as different from illegal fund raising will not affect the distribution of interests of the fund raising participants, and at the same time, it can also ensure that the rights of the plaintiff in civil litigation are solidified by law.

The realistic way to solve the difficulty in recovering the property of a third party involved in illegal fund-raising cases

The author believes that from the perspective of facts, law and balance of interests, it is more realistic to classify the lending relationship of the third party involved in the case as an illegal fund-raising crime. If the lending relationship of the third party involved in the loan is brought under the jurisdiction of civil litigation, the public security bureau and other criminal legal entities can escape unscathed and no longer bear the responsibility for the recovery of this part of the property. At this time, the fundraiser becomes the plaintiff in the civil lawsuit and bears the burden of making claims and providing evidence. However, at this stage, the fundraiser has generally been restricted or deprived of his personal freedom, and his enthusiasm and feasibility of making claims and providing evidence are greatly restricted. Of course, a debt subrogation lawsuit can also be initiated by a fund-raising participant, but there are not only proof problems, but also the issue of distribution balance after the fund-raising participant wins the lawsuit.

It can be seen that identifying the lending relationship between the fundraiser and the third party involved as a criminal fact different from illegal fund-raising is obviously not conducive to recovering losses, and it is not conducive to appeasing investors' emotions and maintaining social stability. On the contrary, the judicial organs have more resources in criminal cases, which is more conducive to recovering stolen goods and reversing losses. At the same time, from a factual and legal perspective, after the fundraiser lent the funds to a third party, the third party involved in the case was unilaterally obligated to repay the principal and interest, and did not pay the funds when obtaining the funds from the fundraiser. any consideration.

In summary, based on the analysis of facts, law and balance of interests, it is more appropriate to classify the third-party lending relationship involved in the case as an illegal fund-raising crime.In this way, the fundraiser does not need to sue the third party involved in the loan, and can be recovered by the judicial authorities based on the illegal income. The court does not have to accept the civil lawsuit. If the third party involved in the loan has any objections, he can submit it to the case handling agency, or he can Objections to execution were raised in court during the execution stage.

It should be noted that classifying the borrowing relationship between the third party involved in the case as an illegal fund-raising crime is mainly based on the consideration of the balance of interests. Therefore, when the judicial authorities recover the property of the third party involved, they cannot be forced by the social contradictions in illegal fund-raising cases. Pressure and recovery of stolen goods are indicators of the effectiveness of pressure, while "excessive" recovery of stolen goods. Especially for private enterprises that are operating normally, if the debt involved is only the personal behavior of the entrepreneur or involves part of the company's property, all the company's property cannot be seized indiscriminately or seized instead of compensation. Otherwise, it will obviously violate the principle of balance of interests. . It can be seen that when it comes to recovering the property of third parties involved in illegal fund-raising crimes, judicial organs must also accurately determine the boundaries of criminal crackdowns and grasp the standards for judicial compulsory disposal, so as to safeguard the legitimate rights and interests of fund-raising participants, third parties involved and society. public interest.

　（ Song Peng Wang Xiaoxue Author unit: Beijing Shunyi District People’s Procuratorate)

Source: Procuratorate Daily