民营企业产权保护视域下非法吸收公众存款罪的扩张与纠偏

The Expansion and Correction of the Crime of Illegally Absorbing Public Deposits from the Perspective of Private Enterprise Property Rights Protection

摘要: 非法吸收公众存款罪的扩张适用在融资领域冲击着民营企业的产权保护，主要体现为合法融资行为非法化以及挤压集资诈骗罪的适用空间。民营企业家在经营过程中不仅要承担经济风险，还要时刻注意飘忽不定的刑事风险，极大地削弱了民营企业家的积极性和创造性。究其原因，一方面在于民营企业发展过程中经营行为失范问题严重；另一方面在于集体主义、重刑主义等思想的影响。刑法规范具有一定的抽象性，其具体化过程也是导致非法吸收公众存款罪适用困难的因素。非法吸收公众存款罪的扩张使得民营企业对金融刑法的可预测性降低，在经营决策过程中畏手畏脚，进而影响民营企业的发展。为消弭非法吸公众存款罪的扩张，应当首先在立法上厘清非法集资行为的行政违法性，避免刑事违法性判断提前化、模糊化。

Abstract: The expansion and application of the crime of illegally absorbing public deposits have impacted the property rights protection of private enterprises in the financing field, mainly reflected in the illegal financing behavior and the application space of squeezing the crime of fundraising fraud. Private entrepreneurs not only have to bear economic risks in the business process, but also constantly pay attention to fluctuating criminal risks, greatly weakening the enthusiasm and creativity of private entrepreneurs. The reason for this is, on the one hand, the serious problem of misconduct in the development process of private enterprises; On the other hand, it is influenced by ideas such as collectivism and heavy punishment. The criminal law norms have a certain degree of abstraction, and their materialization process is also a factor that makes it difficult to apply the crime of illegally absorbing public deposits. The expansion of the crime of illegally absorbing public deposits has led to a decrease in the predictability of financial criminal law among private enterprises, which in turn affects the development of private enterprises. In order to eliminate the expansion of the crime of illegally absorbing public deposits, it is necessary to first clarify the administrative illegality of illegal fundraising behavior in legislation, and avoid the early and vague judgment of criminal illegality.