非法吸收公众存款罪的规范目的与规制范围

On the Normative Purpose and Scope of the Crime of Illegally Absorbing Public Deposits

对于非法吸收公众存款罪的规制范围,理论界与司法界未能达成共识。为了合理界定非法吸收公众存款罪的适用范围,应当对该罪的规范目的展开研究。既有的存款管理秩序说、金融管理秩序说、准入秩序说与存款安全说均存在问题。立法者禁止非法吸收公众存款旨在防范由此引发的挤兑风险和坏账风险。金融风险防范说不但具有理论上的合理性,而且契合了P2P网贷平台监管措施。金融风险防范说能够妥当界定非法吸收公众存款罪的规制范围:银行业金融机构能够成为非法吸收公众存款罪的犯罪主体;构成要件中的"存款"意在表明本罪的规制对象是债权集资,应当将股权集资排除出本罪的规制范围;构成要件中的"公众"是指不特定对象或者超过一定数量的特定对象,公众的判断标准为民间借贷预留了合法化空间;集资用途不是区分罪与非罪的标准,即使以生产为目的而非法吸收公众存款也应当认定为本罪。

With respect to the regulation scope of the crime of illegally absorbing public deposits( hereafter as"Crime"),there are still divided opinions from an academic approach and judicial approach. In order to settle a rational scope as to the meaning of the Crime,the normative purpose of the Crime should be analyzed. There are flaws in almost all the existing theories( i. e.,deposit management order,financial management order,access order and deposit security) as to the understanding of this Crime. The inherent purpose of legislators to prohibit the illegal absorption of public deposits is to mitigate the risk of bank runs and bad debt exposure. The theory of financial risk prevention is not only reasonable from theoretical perspective,but also syncs with legislative practice since this theory is in line with the regulatory measures of P2 P online lending platform. Due to the following factors,it is believed that the theory of financial risk prevention can serve as an effective tool to properly define the regulatory scope of the Crime:( i) banking financial institutions may become the subject of the Crime,( ii) the "deposit"in the constitutive elements of the Crime refers to debt financing only,as opposed to any equity financing,( iii) the"public"in the constitutive elements of the Crime refers to the specific objects that are not specific or exceed a certain number of objects,and the public cognition may serve as a ground to some extent for justifying private lending,( iv) The purpose of fund-raising is not the standard to distinguish guilty from non-guilty,so the absorbing of public deposits for the purpose of production and operation should also be recognized as committing this Crime.