Selected Papers of The Jurist (法学家), Volume 1
- Renmin Chinese Law Review: Selected Papers of The Jurist
Edited by Jichun Shi
Chapter 9: How to define illegal financing: a critique of the judicial interpretation of illegal financing by the Supreme People’s Court
The Judicial Committee of the Supreme People’s Court of the People’s Republic of China released on 22 November 2010 ‘The Interpretation of the Supreme People’s Court of Several Issues on the Specific Application of Law in the Handling of Criminal Cases about Illegal Financing’ (hereinafter referred to as the Interpretation), which came into effect 4 January 2011. It provides explicit instructions for criminal proceedings against illegal financing. There is significant debate concerning these issues within the practice of law. The Interpretation has defined illegal financing, enumerated ten categories of illegal financing, specified the standard of criminalization and sentencing of relevant acts and has even provided exemption rules similar to ‘safe harbor’ provisions. It not only relates to judicial practice by the courts, but also relates to compliance with law pertaining to underground financing activities. Due to its limitations as secondary authority in the Chinese legal framework, the judicial interpretation cannot go beyond the boundary set by the legislature. Instead it can only attempt to make the present statutes more meaningful and less porous. From this aspect, the Interpretation has made sufficient effort in achieving this function. It specifies the standard of criminalization and sentencing of relevant acts, and, by providing explicit exemption rules, shows a tolerant attitude toward underground financing.
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