虚假金融投资“杀猪盘”行为的刑法定性

A Qualitative Analysis of Criminal Law on the Behavior of "Killing Pigs" in False Financial Investment

虚假金融投资“杀猪盘”行为往往具有被害人人数众多、犯罪金额大、社会危害性巨大等特点。司法实践中对于虚假金融投资“杀猪盘”行为的定性主要存在非法经营罪、开设赌场罪与诈骗罪定性之争。准确定性虚假金融投资“杀猪盘”行为,应把握该类行为资金不真实入市、平台吃亏损盈利和投资人不明真相等核心特征。在证据不足以证实诈骗罪的核心特征或实行共犯行为人主观诈骗明知时,可降格认定为非法经营罪。对于参与“杀猪盘”犯罪的其他帮助型共犯人员,不足以证实主观对诈骗犯罪明知时,可认定帮助信息网络犯罪活动罪或者掩饰、隐瞒犯罪所得罪。

The behavior of "killing pigs" in false financial investment often features in a large number of victims and a huge amount of crime, which is of great social harm. In judicial practice,there are mainly disputes over the characterization of the "pig killing" behavior of false financial investment, such as the crime of illegal operation, the crime of opening a casino and the crime of fraud. To accurately characterize the "pig killing" behavior of false financial investment, we should grasp the core characteristics of such behavior, such as untrue capital entering the market,loss profit on the platform and untrue investors. When the evidence is insufficient to prove the core characteristics of the crime of fraud or the accomplice’s subjective knowledge of fraud, the actions can be reduced to the crime of illegal business. For other helping accomplices involved in the "pig killing" crime, if it is not enough to prove that they know the crime of fraud subjectively,they can be identified as having committed the crime of helping information network criminal activities or the crime of concealing or hiding the proceeds of the crime.