Legal procedures for raising funds

Raising funds is one of the ways of financing.

Fund-raising is to obtain funds from within the enterprise, and to let one's subordinates take out money to become shareholders is to raise funds.

The life of financial activities lies in the mutual demand between the impulse of enterprise scale expansion and the impulse of social capital investment. On the one hand, the development of modern industry and commerce and financial industry often needs to raise idle social funds through legal financial means, and realize the development and progress of enterprises through complementary resources; On the other hand, there are a lot of idle funds in the society, and there is a natural demand for investment appreciation. The mutual satisfaction of the above two impulses can be realized not only by bank loans, but also by enterprises directly financing the society. Due to the inherent creditability of fund-raising activities when investors pay the consideration first and then get the return, and the information asymmetry between investors and fund users, the legitimacy of fund-raising activities mainly depends on whether they take effective measures to avoid the risk of fund operation failure to the maximum extent and whether the above measures reach a reasonable level under the goal of protecting social investors enough.

Despite the lack of more effective standards, fund-raising activities are divided into "raising funds from specific objects" and "raising funds from unspecified objects" according to different fund-raising objects and scope (there is a saying in society that the above two different fund-raising methods are "private placement" and "public offering", but these two terms are not legal terms). Due to the differences in investment rationality and social stability between specific and unspecified fund-raising objects, the law has more clear and strict regulatory requirements on the legality of fund-raising activities from unspecified objects, including but not limited to limiting the qualifications of fund-raisers, serious administrative examination and approval procedures, standardizing information disclosure and fund-raising procedures, and ensuring performance ability.

If an individual raises funds from the public by issuing stocks, bonds, lottery tickets, investment fund securities or other creditor's rights certificates without the approval of the relevant departments in accordance with legal procedures, and promises to repay the principal and interest to investors in the form of money or in kind within a certain period of time, it cannot be called illegal fund-raising.

Illegal fund-raising refers to the behavior that a unit or individual raises funds from the public by issuing stocks, bonds, lottery tickets, investment fund securities or other creditor's rights certificates without the approval of the relevant departments in accordance with legal procedures, and promises to repay the principal and interest to investors in the form of money, kind and other income within a certain period of time. Illegal fund-raising often shows the following characteristics: first, it is not approved by relevant departments according to law, including fund-raising without the approval of departments with approval authority; The department with the power of examination and approval ultra vires to examine and approve fund-raising. The second is to promise to repay the principal and interest to investors within a certain period of time. Debt service is mainly in the form of money, but there are also physical and other forms. The third is to raise funds from unspecified objects in society. The "unspecified object" here refers to the public, not a specific minority. The fourth is to cover up the essence of illegal fund-raising in a legal form.

Generally speaking, fund-raising with the above four characteristics can be regarded as illegal fund-raising, but the fundamental feature of judging illegal fund-raising is that the fund-raiser does not have the qualification of fund-raising subject and has promised to repay the principal and interest to investors.

Illegal fund-raising case: Renxian Coal Industry Co., Ltd., Hebei Province.

1July, 999 13, Hebei Renxian Coal Industry Co., Ltd. set up a fixed place in Renxian on the grounds of solving financial difficulties, distributed publicity materials, hung banners and slogans, and publicly raised funds from unspecified public, which caused a sensation in society. The form of fund-raising is "share", with a term of 3 years and an annual interest rate of 10%, which will be paid by the county finance after the commitment expires. * * * By the time of investigation, RMB 6.5438+0.4 million was raised, of which RMB 80,000 was contributed by internal employees; Volkswagen shares 60 thousand.

Judging from the fund-raising situation implemented by coal companies, it is a typical illegal fund-raising case under the guise of "shareholding" to solve the difficulties of enterprises. Illegal fund-raising activities have been banned.

Legal definition of illegal fund-raising;

Article 192 of the Criminal Law, whoever illegally raises funds by fraudulent means for the purpose of illegal possession, if 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.

Interpretation of some problems about the specific application of law in the trial of fraud cases

3. According to the provisions of Article 8 of the Decision, illegal fund-raising by fraudulent means for the purpose of illegal possession constitutes the crime of fund-raising fraud.

"Fraudulent method" refers to the means by which the actor uses the fictitious fund-raising purpose to defraud the fund-raising funds with false certification documents and high return rate as bait.

"Illegal fund-raising" refers to the act of raising funds from the public by legal persons, other organizations or individuals without the approval of the competent department.

If an actor commits one of the following acts as stipulated in Article 8 of the Decision, it shall be deemed that his behavior belongs to "illegal fund-raising by fraudulent means for the purpose of illegal possession":

(1) escaped with the funds raised;

(2) the fund-raising funds are squandered, which makes it impossible to return the fund-raising;

(three) the use of fund-raising funds for illegal and criminal activities, so that the fund-raising funds can not be returned;

(4) Refusing to return the fund-raising funds due to other fraudulent acts, or making it impossible to return the fund-raising funds.

If the amount of personal fund-raising fraud is more than 200,000 yuan, it is a "huge amount"; If the amount of personal fund-raising fraud is more than 6,543,800 yuan, it belongs to "the amount is extremely huge".

The amount of unit fund-raising fraud is more than 500,000 yuan, which is a "huge amount"; The amount of unit fund-raising fraud is more than 2.5 million yuan, which is "extremely huge".

The difference between the crime of fraudulently issuing stocks and bonds and the crime of issuing stocks and bonds without authorization and illegally absorbing public deposits lies in whether it has the purpose of illegal possession. The purpose of the crime of fund-raising fraud must be illegal possession of the raised funds. Although others have the purpose of illegal possession, they still have the intention of returning it, but their fund-raising behavior is illegal.

The amount of illegal fund-raising reached 6 million yuan, which has constituted a crime. There are two articles about illegal fund-raising in the criminal law. One is the crime of illegally absorbing public deposits. The punishment of this crime is relatively light, and the subjective malignancy of the general actor is relatively small. If there is no intention to maliciously occupy public deposits, it is generally sentenced to fixed-term imprisonment of not more than three years or criminal detention. According to a large number of court decisions, in most cases, probation will be given without imprisonment, such as Sun Dawu in Hebei; Another is the crime of fund-raising fraud. This punishment is very heavy, mainly because the perpetrator subjectively has the purpose of illegally taking the public's money for himself and has the purpose of fraud. According to the provisions of the criminal law, it is generally sentenced to fixed-term imprisonment of not more than five years, and if the circumstances are bad, it is sentenced to fixed-term imprisonment of not less than five years 10 years. Especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death. If the person in charge of the company belongs to the first case, there will be no big problem, mainly a fine. In the second case, the punishment will be very heavy.

For the following investors, if there is no direct contact with the company, it does not constitute a crime, because at most, it only collects commissions from them, and subjectively has no purpose of absorbing other people's deposits or occupying other people's deposits, so not calling constitutes a crime and cannot constitute illegal fund-raising. For their own losses, Article 18 of the Measures for Banning Illegal Financial Institutions and Illegal Financial Business Activities (the State Council Order No.247) clearly stipulates: "The losses suffered by participating in illegal financial business activities shall be borne by the participants themselves."