集资诈骗罪的司法困境与罪群立法完善

集资诈骗罪一方面被认定为特殊诈骗罪,与诈骗罪表现为一般与特殊的关系,另一方面又被当作“加重型”非法吸收公众存款罪。因此在刑事司法过程中出现了“骗”与“被骗”的构成要件缺失却依然构成集资诈骗罪、非法吸收公众存款罪中的“欺骗”与集资诈骗罪中的“诈骗”混淆不清、两罪以“非法占有目的”为区分标准的主观化趋势的问题,从而导致“非法占有目的”在被扩大化的同时又被弱化,进而造成集资诈骗罪被矮化、限缩。应从金融秩序法益的立场,回归集资诈骗罪的金融犯罪属性,重塑诈骗罪与集资诈骗罪的关系,明确“欺骗”“诈骗”的同质性,增设“骗取集资款罪”,调整非法吸收公众存款罪的规制范围,构建体系化的集资诈骗罪罪名群,化解集资诈骗罪刑罚供应过度与不足并存的尴尬。

The Judicial Predicaments of the Crime of Fund-Raising Fraud and Legislative Improvement on It and Its Related Crimes

On the one hand,the crime of fund-raising fraud is recognized as a special crime of fraud,the former being the special one and the latter being the general one;on the other hand,it is regarded as an"aggravated"crime of illegal collection of public deposits.Therefore,there are some problems in criminal justice,such as the establishment of the crime of fund-raising fraud in spite of lack of cheating and being cheated,the confusion between"cheating"in the crime of illegal collection of public deposits and"fraud"in the crime of fund-raising fraud,and the subjectivization trend that they are distinguished according to the standard of"the purpose of illegal possession",which lead to both expansion and weakening of"the purpose of illegal possession",thus downgrading and restricting the crime of fund-raising fraud.We should,from the standpoint of legal interest of financial order,reconsider the nature of the crime of fund-raising fraud as a financial crime,reshape the relationship between the crime of fraud and the crime of fund-raising fraud,make clear the homogeneity between"cheating"and"fraud",criminalize collection of funds through cheating as the crime of cheating in the collection of funds,adjust the regulatory scope of the crime of illegal collection of public deposits,build a systematic group of charges for the crime of fund-raising fraud,so as to resolve the problem of excessive and insufficient supply of penalty for the crime of fund-raising fraud.