I. Definition of illegal fund-raising and relevant legal liability provisions
(A) the definition and basic characteristics of illegal fund-raising
According to the Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Fund-raising (Fa Shi [2010] No.18), illegal fund-raising is an act of absorbing funds from the public (including units and individuals) in violation of national financial management laws. Illegal fund-raising should have four characteristics: illegality, openness, inducement and sociality, specifically:
Illegality:Absorbing funds without the approval of relevant departments according to law or in the form of legal operation;
Openness:Publicize to the public through media, promotion meetings, leaflets, mobile phone short messages, etc.
Lure:Commitment to repay the principal and interest or pay returns in the form of money, kind, equity, etc. within a certain period;
Sociality:Absorb funds from the public, that is, social unspecified objects.
(two) the legal responsibility of illegal fund-raisers
In China’s Criminal Law, illegal fund-raising constitutes corresponding crimes according to different subjective attitudes, behaviors and harmful results, among which the most important crimes are the crime of illegally absorbing public deposits in Article 176 and the crime of fund-raising fraud in Article 192.
The Criminal Law stipulates that anyone who commits the crime of illegally absorbing public deposits shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan. Whoever commits the crime of fund-raising fraud and the amount is relatively large shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated property.
(three) to participate in illegal fund-raising, the law does not protect, the government does not pay.
According to the laws and regulations of our country, the losses suffered by participating in illegal fund-raising activities shall be borne by the participants themselves, and the debts and risks formed shall not be passed on to any other unit that has not participated in illegal fund-raising activities. The repayment of fund-raising funds should be based on the remaining funds after cleaning up, and unified repayment should be given according to the proportion of fund-raisers. After the execution of the people’s court, the fund raiser is still unable to repay the fund-raising funds, and the participants shall bear the losses themselves. This means that once the public participates in illegal fund-raising, their interests are not protected by law, and the government, relevant departments and judicial organs may not be required to bear the losses.
(D) Be cautious when working in an informal wealth management company, and being a salesman is also risky.
According to the Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Illegal Fund-raising, those who provide assistance for others to illegally absorb funds from the public and collect agency fees, benefits fees, rebate fees, commissions, royalties and other fees from them constitute a joint crime of illegal fund-raising shall be investigated for criminal responsibility according to law.
Second, the manifestations and common means of illegal fund-raising
(a) the main forms of illegal fund-raising.
Illegal fund-raising activities involve a wide range of contents and various forms. Judging from the current crime situation, it mainly includes four categories: creditor’s rights, equity, commodity marketing, production and operation. Mainly in the following forms:
one.Illegal fund-raising in the name of planting, breeding, project development, manor development, ecological and environmental protection investment, etc.
2.Illegal fund-raising in the name of issuing or disguised shares, bonds, lottery tickets, investment funds and other rights certificates or futures trading or pawn.
three.Illegal fund-raising by claiming shares and participating in dividends.
four.Illegal fund-raising through membership cards, membership cards, seat cards, discount cards, consumption cards, etc.
five.Illegal fund-raising by means of commodity sales and leaseback, repurchase and transfer, membership development, business alliance and "quick integral method".
six.The use of modern electronic network technology to construct "virtual" products, such as "electronic shops", "electronic department stores" to invest in entrusted operations, due to repurchase and other ways to raise funds illegally.
seven.Divide property, real estate and other assets equally, and illegally raise funds by selling the right to dispose of their shares.
eight.Use the Internet to set up an investment fund for illegal fund-raising.
nine.Illegal fund-raising in the form of "electronic gold investment".
(B) Four common techniques
The first is to promise high returns.The criminals fabricated the myth of "falling pie from the sky" and "becoming rich overnight" and promised investors high returns. In order to defraud more people to participate in fund-raising, illegal fund-raisers often pay their promised principal and interest in full and on time at the initial stage of fund-raising. After the fund-raising reaches a certain scale, they secretly transfer funds or abscond with money, causing economic losses to fund-raisers.
The second is to fabricate false projects.Most of the criminals fabricated all kinds of false projects by registering legitimate companies or enterprises, under the guise of responding to national industrial policies and carrying out entrepreneurial innovation, and some even organized free tours and inspections to defraud the public.
The third is to create momentum with false propaganda.Criminals often spend a lot of money on propaganda, hiring celebrity endorsements and celebrity platforms, publishing advertisements in major radio, television, internet and other media, publishing interview articles in famous newspapers, hiring people to widely distribute leaflets, making social donations and other ways to create false momentum.
The fourth is to use family to deceive.Some illegal fund-raising participants, in order to complete or increase their own performance, sometimes adopt pyramid schemes, and do not hesitate to use their family ties and geographical relations to fabricate lies about their high returns, so as to attract relatives, friends, classmates or neighbors to join them, so that the participants spread rapidly and the scale of fund-raising continues to expand.
(C) Typical "Four Steps" of illegal fund-raising activities
Step 1: Draw a cake.Illegal fund-raisers will weave one or more projects that are as high as possible. Under the guise of "new technology", "new revolution", "new policy", "blockchain" and "virtual currency", draw a blueprint with rich expected returns, and "hang up" the appetite of fund-raising participants, giving them the illusion of "don’t miss it" and "now or never". Illegal fund-raisers will generally draw "cakes" to attract the attention of participants as much as possible.
The second step: build momentum.Use all resources to make the momentum bigger. Illegal fund-raisers usually hold various publicity activities, such as press conferences, product promotion meetings, on-site observation meetings, experience days, knowledge lectures, etc. Organize group tours, inspections, etc., and give small gifts such as rice flour oil and telephone bills; A large number of true or false "technical certification", "award certificate" and "government approval" are displayed; Publish some video materials inspected by leaders, and take photos with government officials and stars; Deliberately selecting the event in the government conference center and auditorium is extremely deceptive because of its large scene and high specifications.
Step 3: suck gold.Try to get the money out of your pocket. Illegal fund-raisers give participants a first taste of "sweetness" through rebates and dividends, making them believe that putting money in his place not only has considerable income, but also is safer than putting it in his pocket. Participants not only pour out their own money, but also mobilize relatives and friends to join, and the amount of fund-raising is getting bigger and bigger.
Part four: Run away.Illegal fund-raisers often run away after "sucking money" for a period of time, or because people who were originally "Ponzi scheme" went to the building, or because of poor management, the capital chain was broken. Fund-raising participants suffered heavy economic losses, or even lost all their money.
(D) Common routines of illegal fund-raising.
In order to lure the masses to be deceived and achieve the purpose of illegal fund-raising, criminals usually take the following measures to defraud the masses.
one.Decorate the facade of the company and create the illusion of strength.Criminals often set up companies to handle business licenses, tax registration and other procedures, which seem legal, but in fact they have no financial qualifications. These companies or offices are high-end and luxurious, or publicize the background of state-owned assets, or invest heavily in packaging publicity through various media or even CCTV, or hold promotion conferences and knowledge lectures in high-end places (such as the Great Hall of the People), inviting celebrities, scholars and officials to build momentum on the platform, showing photos with leaders and various awards, which is more deceptive.
2.Fabricate investment projects to dispel the doubts of the masses.From the past forms of agriculture, forestry and mining development, private lending, real estate sales, original share issuance, franchise operation, etc., it is gradually upgraded and packaged into various wealth management projects such as investment and wealth management, wealth management, financial mutual assistance and wealth management, overseas listing, private equity, etc., and promises to be guaranteed, repurchased, low risk and high return.
three.Confusing the concept of investment is difficult for ordinary people to judge.The criminals blew the listing in the local stock exchange center into listing, and confused the listing in the American OTCBB market with listing on NASDAQ; Some use new terms such as electronic gold, investment funds and online speculation to confuse the masses and pretend to be new investment tools or financial products; Some use monopoly, agency, franchise chain, consumption value-added rebate, e-commerce and other new business methods to deceive the people to invest.
four.Promise high returns and fabricate the myth of "getting rich".Lure at high interest is the only way for all fraud criminals to deceive the masses. At first, the criminals paid the principal and interest of the early investors in full and on time, then they robbed Peter to pay Paul, and used the money of the later people to pay the previous principal and interest. After reaching a certain scale, they secretly transferred the funds and fled with the money.
Third, how to prevent illegal fund-raising
(a) in case of raising funds from the public in the following circumstances, be sure to be vigilant:
one.Under the guise of "watching advertisements, earning extra money" and "consumer rebate";
2.Under the guise of overseas investment in equity, options, foreign exchange, precious metals, etc.;
three.Under the guise of high returns from investment in the pension industry or "free" pension or "housing" pension;
four.Taking private equity participation and partnership as a cover, but not registering the enterprise in industrial and commercial registration;
five.Under the guise of investing in virtual currency and blockchain;
six.Under the guise of poverty alleviation, mutual assistance, charity and film and television culture;
seven.Distributing advertising leaflets on investment and wealth management in streets, shopping malls and supermarkets;
eight.Recruit elderly people by organizing inspection tours, tours, lectures, etc.;
nine."Investment and wealth management" companies, websites and servers are overseas;
10.Requiring to pay investment funds in cash or to personal accounts or overseas accounts.
(B) to prevent illegal fund-raising, "think twice and wait for one night" method.
Four look.A look at the legality of financing depends not only on whether the business license of the enterprise is obtained, but also on whether the relevant financial license is obtained or approved by the financial management department. Second, look at the propaganda content to see if it contains or implies "guaranteed, risk-free, high-yield, steady profit without loss" and so on. Third, look at the business model, whether there are any physical projects, the authenticity of the projects, the investment direction of funds, and the way to obtain profits. Fourth, see if the participants in fund-raising are mainly for specific groups such as the elderly.
Think twice.Think about whether you really understand the product and market conditions. Second, whether the product conforms to the market rules. Think twice about whether your own economic strength has the ability to resist risks.
Wait all night.When you encounter related investment and fund-raising publicity, you must avoid being hot-headed, first seek the opinions of your family and friends, and then postpone your decision for one night. Don’t blindly believe in propaganda, acquaintance introduction and expert recommendation, and don’t be tempted to invest blindly by high profits.
(C) to avoid the trap of illegal fund-raising, "three musts and three don ‘ts"
First, be rational and don’t be lucky.There is no pie in the sky, but it is either a trap or a trap. We should stick to the rational bottom line, think about whether we understand or not, compare the risks, see if the income level is realistic, ask family and friends what they think, and don’t be blinded by gambling mentality and luck!
Second, be steady and don’t take risks.High yield means high risk, and it may also be an investment scam. If you invest once, you will lose everything! We should reasonably evaluate our own tolerance, carefully determine our willingness to take risks, and don’t take risks!
Third, we should be vigilant and not blind."Rich income, attractive conditions, rare opportunities and limited places" are all likely to be flickering, so be alert, alert and alert again! Pay more attention, never listen to the wind is rain, and blindly "follow the crowd" to invest!
(D) to avoid the trap of illegal fund-raising, the "three look and think twice" method.
Third, look:
lookWhether it has obtained the approval documents from the financial regulatory authorities (such as the People’s Bank of China, China Banking and Insurance Regulatory Commission, CSRC, etc.) and verified the authenticity with the regulatory authorities;
ErkanWhether the investment and wealth management products are within the approved business scope;
SankanWhether the investment field of funds is true, safe and reliable.
Think twice:
YisiWhether you really understand the product and market conditions;
ErsiWhether the investment income conforms to the law of market operation;
think thrice—think carefullyWhether its own economic strength has the ability to resist risks.
(5) Invest cautiously to prevent illegal fund-raising traps.
One isDon’t trust the so-called easilyHigh interest rate "insurance" and high interest rate "financial management", high income means high risk;The second isDon’t be moved by small gifts, don’t accept the bait of "returning interest first", and remember that there will be no pies in the sky.The third isFinancial products should be purchased through formal channels.Do not sign investment and financial management agreements with banks and insurance employees, and do not accept any receipts or IOUs issued by employees;In the process of purchasing insurance, we should try our best to achieve "three checks and two cooperations".That is, through the websites of insurance companies, customer hotlines or regulatory departments and industry associations, we can check personnel, products and documents, cooperate with the transfer and payment, and cooperate with the return visit.The fourth isPay attention to the protection of personal information, pay attention to the risk tips of illegal fund-raising issued by government departments, and report complaints in time in case of suspected illegal fund-raising behavior.
Fourth,Matters needing attention
(1)The financial industry is a franchise industry and must be licensed to operate.
The commonly known financial license refers to the license of relevant institutions to engage in specific financial business with the approval of the national financial supervision department, which is issued by the People’s Bank of China, China Banking and Insurance Regulatory Commission and the China Securities Regulatory Commission. The financial businesses that must be licensed mainly include banking, insurance, trust, securities, futures, financial leasing, Public Offering of Fund and third-party payment.Asset management business, which belongs to financial business, must be licensed and brought into financial supervision. If residents have financial needs, they should choose asset management products issued by licensed financial institutions such as banks, trusts, securities, funds, futures, insurance asset management institutions and financial asset investment companies. Without the permission of the financial supervision and regulation department, no non-financial institution or individual may sell asset management products as an agent.
(2) Is it reliable to invest in "virtual currency" and "blockchain"?
Under the banner of "financial innovation" and "blockchain", some lawless elements absorb funds by issuing so-called "virtual currency", "virtual assets" and "digital assets", thus infringing on the legitimate rights and interests of the public. This kind of activity is not really based on blockchain technology, but the reality of speculating on the concept of blockchain for illegal fund-raising, pyramid selling and fraud, which mainly has the following characteristics:
one.Networking and cross-border are obvious.Relying on the Internet and chat tools to conduct transactions, and using online payment tools to collect and pay funds, the risks spread widely and spread quickly. Some lawless elements set up websites by renting overseas servers, which actually carry out activities for domestic residents and remotely control the implementation of illegal activities. Some individuals claim in the chat tool group that they have obtained the investment quota of overseas high-quality blockchain projects, which can be invested on their behalf, most likely fraudulent activities. The funds of these illegal activities mostly flow abroad, so it is very difficult to supervise and track them.
2.Deception, temptation and concealment are strong.Speculation is carried out by using the hot concept, and various theories of "standing tall" are fabricated. Some people also use celebrity big V "platform" for propaganda, and air-drop "candy" as a temptation, claiming that "the currency will only rise and not fall" and "the investment cycle is short, the income is high and the risk is low", which is highly confusing. In practice, criminals illegally seek huge profits by manipulating the price trend of so-called virtual currency behind the scenes, setting profit and cash withdrawal thresholds and other means. In addition, some lawless elements also issue tokens under the guise of ICO, IFO, IEO, etc., or speculate in the form of IMO under the banner of sharing economy, which has strong concealment and confusion.
three.There are many illegal risks.Through public publicity, criminals use "static income" (profit from speculative currency appreciation) and "dynamic income" (profit from off-line development) as bait to attract public investment, and lure investors and developers to join, constantly expanding the pool of funds, which has the characteristics of illegal fund-raising, pyramid selling, fraud and other illegal acts.
This kind of activity takes "financial innovation" as the gimmick, which is essentially a Ponzi scheme of "borrowing the new and returning the old", and it is difficult to maintain the capital operation for a long time. Please ask the general public to treat the blockchain rationally, don’t blindly believe in the promises of hype, establish correct monetary concepts and investment concepts, and effectively raise risk awareness; The clues of illegal crimes found can be actively reported to the relevant departments.
(3) Can the model of consumer rebate participate?
Recently, some third-party platforms, under the banner of "starting a business" and "innovation", take "shopping returns to capital", "consumption equals making money" and "you spend and I pay back the money" as gimmicks, and promise to return high or even full consumption and franchise fees, so as to attract consumers and businesses to invest. This kind of "consumer rebate" is different from the normal business rebate promotion activities, and there are great risks:
one.High rebate is difficult to achieve.Rebate funds mainly come from commodity premium income and fees paid by members and franchisees. Most platforms do not have legitimate real economy and income matching their promised returns, so it is difficult to maintain capital operation and high rebate for a long time.
2.The security of funds cannot be guaranteed.Some platforms absorb public and business funds through online and offline channels, such as "prepaid consumption" and "recharge", and a large amount of funds are controlled by the platform, which has the risk of transferring funds and running away.
three.There are illegal risks in the operation mode.Some platforms fictionalize profit prospects, promise high returns, instruct or acquiesce members and franchisees to fictionalize commodity transactions, pay a certain percentage of fees directly to the platform, and seek high rebates. In this way, the platform achieves the goal of quickly absorbing public funds. Some platforms also use pyramid schemes, with the so-called "dynamic income" as bait, requiring participants to pay entry fees and "attract people to join" and get commissions by developing offline. The above-mentioned behaviors of the platform and participants are characterized by illegal fund-raising and pyramid schemes.
The operation mode of such platforms violates the law of value, and once the capital chain breaks, participants will face serious losses. According to the relevant regulations, participation in illegal fund-raising is not protected by law, and you are at your own risk and responsibility; It is illegal to participate in pyramid schemes and will bear corresponding responsibilities according to law. The general public and businesses are requested to be vigilant, enhance risk prevention awareness and identification ability, and prevent damage to interests. At the same time, the clues of illegal crimes can be actively reflected to the relevant departments.
(4) What are the illegal fund-raising in the field of old-age care?
In the name of providing old-age services and providing healthy old-age care, some old-age service institutions and enterprises promise high returns, collect membership fees and bed fees from the elderly, fraudulently sell "health products" and commit crimes such as illegal fund-raising and pyramid schemes that infringe on the legitimate rights and interests of the elderly, causing serious property losses to the elderly. This kind of activity is different from the normal old-age care service, and there are great risks:
one.High rebate cannot be realized.The rebate funds mainly come from the expenses paid by the elderly, which belongs to robbing Peter to pay Paul. Most old-age care institutions and enterprises do not have legitimate service entities and benefits that match their promised returns, so it is difficult to sustain the operation of funds, and the high rebate is only a fraud gimmick.
2.The security of funds cannot be guaranteed.Some old-age care institutions have obviously exceeded the bed supply capacity, or promised to repay the principal and interest beyond the sustainable profit level, and in the name of handling "VIP cards", "membership cards" and "prepaid cards", they charge high membership fees, deposits or recharge membership cards to absorb public funds. A large number of funds from the public are not effectively supervised and controlled by the sponsoring institutions, and there is a risk of transferring funds and running away with money.
three.Health needs cannot be met.Some enterprises promote the so-called "health care products" to the elderly through conference marketing, health lectures, expert free clinics, free inspections, free experiences, giving gifts or traveling at unreasonably low prices, as well as telephone sales, door-to-door sales and online sales. Because the concept of "health care products" has no legal position, it is often used to steal the column and change the concept, and it is often compared with legally registered and approved drugs and medical devices.
four.There are illegal risks in the operation mode.Some old-age service agencies sell fictitious old-age apartments and old-age villas, or in the name of investment, joining, shareholding in health care and old-age apartments and other projects, they promise to absorb funds by means of return sales, after-sales charter, agreed repurchase and sales of real estate shares. Some enterprises don’t have the real content of selling goods or don’t take selling goods as their main purpose. Instead, they cheat and induce by means of free travel, giving in kind, health lectures, etc., and illegally absorb public funds by means of commodity repurchase, consignment sales and consumption rebate. The above-mentioned behaviors of relevant institutions and participants have risks such as illegal fund-raising.
According to the relevant regulations, the organization and implementation of illegal fund-raising should bear corresponding responsibilities and participate in illegal fund-raising at its own risk. The elderly and their families are requested to be vigilant, enhance their awareness of risk prevention and identification, and consciously stay away from illegal fund-raising and pyramid schemes to prevent damage to their interests. If you find clues about suspected crimes, you can actively report them to the relevant departments.
(5) Is "speculative foreign exchange financing" a reliable investment channel?
At present, there are a large number of platforms for domestic users to carry out financing dividends under the banner of "foreign exchange trading", which are not reliable! In recent years, there have been many incidents in which foreign exchange wealth management platforms have collapsed, suddenly shut down or been characterized as pyramid schemes, and their risks mainly fall into four categories:
The first category is that the business license is suspected of fraud.In order to attract investors, some foreign exchange financial platforms often claim that they are supervised by authoritative institutions or claim to have authorization. Recently, a company claimed to be "a financial institution recognized by the British FCA and fully supervised by it" and attached the FCA code. However, after inquiry, it was found that the website corresponding to the code was not consistent with the company.
The second category is that the transaction process is opaque.Some foreign exchange financial management platforms declare that "funds are safe, only earning without losing". These platform funds have not been purchased in accordance with the law and remitted to overseas investment, but have been operated in a "black box" and constantly eroded during the transaction. For example, some platforms are counterparties of their customers. Novices can often get higher returns, but investors will gradually lose money after increasing their investment, and this will also happen when they operate under the advice of the platform or adopt the automatic follow-up mode.
The third category is to use the "MLM model" to develop customers.In the name of "mutual financial management", some foreign exchange platforms have developed offline and continuously attracted new investors by means of hierarchical rebates. This model is suspected of pyramid schemes. For example, the foreign exchange platform Volcker (http://walkert.cc) claims that "it is a British financial company with a history of 100 years, and it is supervised by FCA to ensure the safety of customers’ principal. Investors can get the lowest percentage of income and three dividends every month, and at the same time, investors can get commissions through the development of offline, and generally get a certain percentage of dividends from the 10th floor." The platform quickly attracted a large number of investors through this business model. After verification, it was found that Volcker was not under the supervision of FCA, and the platform could not withdraw cash normally.
The fourth category is "continuous high dividends" under the banner of "foreign exchange trading".Some platforms raise funds under the banner of "foreign exchange trading" and carry out "continuous high dividends". The premise of the establishment of this model is that the profit of "foreign exchange trading" is always greater than that of "dividends", and the profit is uncertain. The sustained profit claimed by such platforms is absolutely impossible, and it is probably a Ponzi scheme.
(6) What should individuals pay attention to when investing in private equity funds?
Before investing, it is suggested to check whether the private equity fund company is registered and whether the private equity product is put on record on the website of asset management association of china (http://gs.amac.org.cn).
At the same time, the purchase of private equity products must meet the requirements of legally qualified investors, and have the corresponding risk identification ability and risk-taking ability. The financial assets of investors are not less than 3 million yuan or the average annual income of individuals in the last three years is not less than 500,000 yuan. The investment amount of a single private equity fund product is not less than 1 million yuan. The total number of people actually investing in this private equity product cannot exceed 200. Private placement products cannot be sold to unspecified objects.
So please pay attention to the following situations:
one.If you invest 50 thousand yuan to buy a private placement product, you must have met a liar;
2.If you receive a strange sales call or text message, or see a leaflet and then buy a private placement product, it must be a liar;
three.If someone pulls you to travel for free, then holds an investment report meeting in the resort hotel and then hitches a ride with private equity, then you are fooled!
