总体国家安全观视域下非法集资的刑法治理检视

Reflection on the Governance of Illegal Fund-raising through Criminal Law from the Perspective of the Holistic View of National Security

总体国家安全观视域下,作为非正规金融的非法集资活动,同样存在与正规金融相同的市场风险和道德风险,因而也有外部监管的必要性。鉴于非法集资活动的表现形态多样、危害后果各异,应采取不同的规制对策:对于形形色色的诈骗型集资,因其源自传统的自然犯,应予以严惩;对于脱实向虚的投资型集资,因其破坏国家宏观调控政策、危及出借方的资金安全,应予以必要的刑法惩治;对于服务实体的生产型集资,虽有一定的融资风险,但基于鼓励创新发展和稳定扩大就业的需要,可予以全面除罪化。从立法技术上看,《刑法修正案(十一)》对非法集资犯罪的刑罚结构调整基本上是可取的,但对于生产型集资,宜将"资金用于项目"作为消极的犯罪构成要件要素。

From the perspective of the holistic view of national security, illegal fund-raising as a kind of illegal financial activities also has the same market risk and moral risk as legal financial activities, so it is necessary to impose external supervision. In view of diversified patterns and various harmful consequences of illegal fund-raising activities, different regulatory measures should be adopted:for various kinds of fraud-style fund-raising, serious penalty should be imposed due to its nature of traditionally natural crime;for the investment-style fund-raising with the nature of shifting from the real economy to fictitious economy, necessary criminal punishment should be imposed due to its damage to the national macro-control policy and danger to the security of lenders’ funds;for the production-style fund-raising serving the real economy, in spite of certain financial risk, it can be fully decriminalized on basis of the necessity of encouraging innovative development, stabilizing and expanding employment.As far as the legislative technique is concerned, the adjustment of the penalty structure of illegal fundraising crimes in the Amendment(XI) to the Criminal Law of China is basically feasible. However, for the production-style fund-raising, "financing for projects" should be regarded as a negative constituent of the crime.