Finance is a highly professional field, and the defense of financial crimes needs to be based on a practical understanding of finance, combined with the basic knowledge of criminal law, and the defense of extremely high professional and professional standards. It is not good to understand the criminal law and not to understand finance; to understand finance and not to understand the criminal law, we do not know how to argue. At present, the main points and defense models of P2P and other illegal fund-raising crimes have been basically modularized, especially the original sin of P2P is that no financial license has been issued at all. However, the field of private equity funds is not the same, in the field of private equity, it may be financial qualifications, it may be that there is no financial qualifications, if it is a private placement with financial qualifications, the mode and main points of defense will be completely different from the "no financial qualifications" of illegal fund-raising crimes from the origin of defense.
The defense of illegal fund-raising crimes in the field of private equity funds is quite difficult, and it is difficult in several places:
First, the case-handling organs in some regions also simply and rudely believe that as long as the money is not paid, it is a crime, and as long as the investor (or victim) suffers losses, it is a crime. As a result, when investors unilaterally claim that the sales organization and personnel "promised to guarantee the principal and interest" after the investment could not be recovered, the case-handling organ did not discriminate and listened to the bias.
Second, the case-handling organs in individual regions do not have a sufficient understanding of financial licenses and financial qualifications, and the specific procedures and methods for the approval of private financial qualifications and the filing of private equity products are not clear at all. In practice, there have even been cases where the case-handling organs believe that only banks have financial qualifications, and any other institution does not have financial qualifications as long as it is not a bank.
Third, the case-handling organs of individual regions have no concept of the professional terms such as "qualified investor", "offering", "subscription, redemption and transfer" involved in private placement.
Fourth, the case-handling organs in individual regions have not grasped the whole process and scope of the return of stolen goods and the recovery of stolen goods, and the recovery of customers who are "charging and lifting differences", especially those who are positive for "charging and lifting differences". In practice, there are even cases where the investor who was returned money before filing the case is frozen and deducted at the criminal enforcement stage after the judgment.
Fifth, in local cases involving a nationwide nature, case-handling organs in individual regions cannot comprehensively consider the appropriate delineation of the "criminal circle" (specific to the arrest of several people, why these people are arrested, that is, the scope of criminal suspects), and accurately grasp the basic issues of conviction (non-absorption or fund-raising fraud) and sentencing (equalization). If these problems cannot be grasped as a whole, it may even appear nationwide, where the conviction and sentencing of the main offender and the accomplice of the group are "upside down", such as the main offender of the group (the place of the main crime) is determined to be non-smoking, the sentence is lower, and the sentence is later; the group accessory (the place of secondary crime) is set to raise funds for fraud, the sentence is higher, and the sentence is earlier.
Sixth, the case-handling organs in individual regions lack penetrating verification of the authenticity of the project, emphasizing written confessions over actual investigations. The actual projects are scattered all over the country, and the real projects and false projects are mixed together, which makes the investigation more difficult and the case handling cycle. However, whether the project to which the funds of the private equity fund is flowing is real is one of the keys to judging the crime and the non-crime, the crime of this crime, and the seriousness of the misdemeanor.
As mentioned above, quoting a sentence from Teacher Liu Zhe: "What you are handling is not a case, but someone else's life", although financial crimes may be a major challenge to the professional ability of some case-handling personnel, please be strict in line with a realistic attitude, based on facts, based on the law, especially based on the constituent elements of illegal fund-raising crimes, not patchwork and application, but strictly applicable, in order to achieve a judgment that convinces the defendant and his family. Instead of letting the defendant and his family go down the difficult road of second instance and retrial.
In view of the above problems, the main points of defense for illegal fund-raising crimes in the field of private equity funds are summarized as follows:
First, from the perspective of criminal composition, on the issue of the financial qualification of private equity fund institutions. First, whether it has been approved by the China Securities Regulatory Commission, whether it has independent fund sales qualifications and other financial qualifications; second, whether all products have been filed with the Asset Management Association of China and whether they have manager qualifications; third, whether the establishment of branches in the region has been approved by the local securities regulatory commission; and fourth, whether the establishment of branches in the region has been approved by the local market supervision bureau.
Second, from the perspective of criminal entities, the financial qualifications of personnel of private equity fund institutions are concerned. Whether all the personnel have passed the fund qualification examination organized by the Asset Management Association of China, whether they have the qualification of fund practitioners, whether they have completed the prescribed online learning time in accordance with the requirements in the later stage, and whether they are actually engaged in the industry.
Third, from the perspective of the object of the crime, the sales object of the private equity fund is the problem. Whether the sales are for specific people or for unspecified people.
Fourth, from the perspective of the amount of crime, the determination of the repeated investment of private equity funds against specific people. In January 2019, the Notice of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on< Several Issues Concerning the Handling of Criminal Cases of Illegal Fund-raising > issued by the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security pointed out that "the amount of illegal absorption or covert absorption of deposits from the public is calculated in full amount of the funds absorbed by the perpetrators." The amount of the fundraising participant recovering the principal or re-investing after receiving a return is not deductible, but may be considered as a sentencing circumstance. ”
Fifth, from the perspective of criminal behavior, there is a question of the way private equity funds are sold. Whether to call blindly, whether to send SMS in groups, whether to send leaflets on the street, whether to send circles of friends, whether to send WeChat groups, and whether to use the Internet to spread and spread rapidly. Or call a specific customer, make an appointment to the store, introduce the product, and sign a contract.
Sixth, from the perspective of the target of the crime, the identification of qualified investors in private equity funds. According to Article 12 of the Interim Measures for the Supervision and Administration of Private Equity Investment Funds (Order No. 105 of the China Securities Visibility Management Commission, hereinafter referred to as the "Measures for the Supervision of Private Equity Funds"), qualified investors of private funds refer to units and individuals with corresponding risk identification capabilities and risk bearing capacity, and the amount of investment in a single private fund is not less than 1 million yuan and meets the following relevant standards: (1) Units with net assets of not less than 10 million yuan ;(2) Individuals whose financial assets are not less than 3 million yuan or whose average annual income in the last three years is not less than 500,000 yuan. The financial assets referred to in the preceding paragraph include bank deposits, stocks, creditor's rights, fund shares, asset management plans, bank wealth management products, trust plans, insurance products, futures rights and interests, etc. Whether the investor's witness testimony identifies himself as an accredited investor. Whether the above-mentioned investors have signed the "Fund Qualified Investor Commitment Letter" in writing before investing, indicating that they are willing to bear the corresponding investment risks. Whether to sign the "Risk Disclosure Letter" in writing, indicating that you are willing to bear the risk of principal loss.
Seventh, from the perspective of criminal behavior, whether to protect the principal and interest in the sales process of private equity funds. Whether investors' motivation for investment is more focused on the commitment of salespeople to guarantee principal and interest, or more on the historical redemption of private equity institution products and the personal benefits they have benefited from.
Eighth, from the perspective of subjective malignancy, the knowledge of the criminal intent of the personnel within the criminal group. In addition to the participants who are fully aware of the criminal intent, the uninformed participants, especially the ordinary salespeople, have also invested in themselves, and whether they have mobilized their relatives and friends to invest together. In the event of a situation where it is impossible to pay on time, it is necessary to continue to actively pursue the results of the crime, or to actively strive to avoid and stop the further expansion and spread of the results of the crime.
Ninth, from the perspective of sincere repentance and forgiveness of the victims. In January 2019, the Notice of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on< Several Issues Concerning the Handling of Criminal Cases of Illegal Fund-raising > issued by the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security pointed out that "those involved in the case who actively cooperate with the investigation, voluntarily return stolen goods and make compensation, and sincerely admit guilt and repentance may be given a lenient punishment in accordance with law." ”
Tenth, whether it is an active surrender or a truthful confession can be determined as voluntary surrender.
I am Lili Wang, a lawyer who focuses on criminal compliance and defense, especially the defense of illegal fund-raising crimes in the financial sector. Small article throwing bricks and jade, welcome interested readers, colleagues to further discuss! I wish all readers and colleagues good health and happy frost fall!