自然人“荐股”行为刑事可罚性的规范判断

Normative Judgment on the Criminal Punishability of “Stock Promotion” by Natural Persons

电信网络犯罪案件的犯罪形态不断扩大,占刑事案件的比重逐年上升。一些犯罪分子找到机会,利用散户投资者对证券投资知识的大量需求,提供“荐股”服务,导致“荐股诈骗”类犯罪的数量也在增加。对于自然人的“荐股”行为,当前司法裁判多以非法经营罪论处,但“荐股”行为是否真的都可以评价为非法经营罪,是否都符合非法经营罪的设立目的,目前仍然存在较大争议。通过对“荐股”行为的裁判现状以及前置性评价进行分析,理清此类案件中非法经营罪与诈骗罪的界限,将自然人“荐股”行为具体分为几种不同情形,首先考查行为的资质情况,如果行为人没有从业资格且没有一年以上从业经历,但是谎称有资质、有能力等,从而诱骗受害人,并使受害人对其资质产生错误认识,基于对其能力的信任支付一定费用而遭受损失的,应认定构成诈骗罪;对宣称提供专业服务,实际不帮助被害人获取利润,只为骗取被害人相关费用而任意推荐的,认定构成诈骗罪;向受害人提供虚拟平台,诱骗受害人在虚拟平台进行投资的,应认定为诈骗罪;在投资平台性质难以查实,但存在可由人为控制、对赌、虚构标的等与证券市场的正常交易规则不一致的经营模式时,应当根据逻辑推理,认定涉案投资为虚拟投资,可以推定为诈骗犯罪。

The criminal forms of telecommunications network crimes are constantly expanding, and their proportion in criminal cases is increasing year by year. Some criminals have found opportunities to take advantage of the large demand for securities investment knowledge from retail investors and provide “stock recommendation” services, leading to an increase in the number of “stock recommendation fraud” crimes. For the act of recommending shares by natural persons, current judicial rulings often deal with the crime of illegal business operations. However, there is still significant controversy over whether the act of recommending shares can truly be evaluated as the crime of illegal business operations and whether it meets the purpose of establishing the crime of illegal business operations. By analyzing the current situation of the adjudication of the act of “recommending stocks” and the antecedent evaluation, clarifying the boundaries between the crime of illegal business operation and the crime of fraud in this type of case, and classifying the act of “recommending stocks” by a natural person into a number of different scenarios. Firstly, the qualification of the behavior should be examined. If the actor does not have professional qualifications and has no more than one year of professional experience, but falsely claims to have qualifications or abilities, thereby deceiving the victim and causing them to have a wrong understanding of their qualifications. Based on the trust in their ability to pay a certain fee and suffer losses, it should be deemed as constituting the crime of fraud. Those who claim to provide professional services but do not actually help the victim gain profits and only arbitrarily recommend for the purpose of defrauding the victim of relevant expenses shall be deemed to constitute the crime of fraud. Providing virtual platforms to victims and enticing them to invest on virtual platforms should be recognized as the crime of fraud. When the nature of an investment platform is difficult to verify, but there are business models that can be artificially controlled, bet on, or fabricate targets that are inconsistent with the normal trading rules of the securities market, logical reasoning should be used to determine that the involved investment is a virtual investment and can be presumed as a fraud crime.