Study On The Crimes Of Cheating Loan, Bills Acceptance, Finance Tickets

The crimes concerning financial credit, especially the cases of cheating loan, are currently being crimes which have seriously violated the law profit in China’s economic life. With the issue for enforcement of the crimes of cheating loan, bills acceptance, finance tickets, deep and systematic research on it has not only a theoretical but a guiding significance to criminal practice. Six chapters are involed in the thesis. On the basis of a brief account of crimes of cheating loan, bills acceptance, finance tickets, a deepgoing and overall study has been made respectively in its law profit, constructive key element, formation, affirmation, legislative consideration and perfection.In the chapter of brief account, the legislative development and the correlative legal situation of this crime in foreign countries has been introduced. As to crime of finance fraud, whether in continental law system countries or in Britain-US law system countries, a non-intentional legislative way is mostly adopted in their criminal law. That is to say, it focuses on how the loan or other financial reputation has been obtained, and the illegal intention of possession is always neglected. In China, a false statement of financial cheating is considered a crime, and a "non-intentional" legislative mode is adopted, so it meets not only the demands of principle of honesty and trustworthiness in market-oriented economy, but also the demands of China’s fundamental "combining suppression with leniency" policy. Futhermore, it also comforms to the legislative tedency and trend abroad on the backgroud of finance globlization. As for the name of this crime, there are quite a few different opinions in the acdemic field. Though the name of "crimes of cheating loan, bills acceptance, finance tickets" is taken by Supreme People’s Court and Supreme People’s Procuratorate, the name of "crimes of acquiring loan, reputation from financial institution by fraud" actually closely reflects the facts about the crime and fully embodies them. In addition, present situation, characteristic, contributing factor and countermeasure about this crime are also stated in the thesis.It is appropriate to replace "criminal object" with "law profit". Law profit is an object not only prevented by law, but violated by crimes, but it is not involved in the content of criminal factors, and it is involved in the content of criminal notion. Various law profits have been infringed by this crime. Firstly, it violates the abstract law profit-----the principle of honesty and trustworthiness. Secondly, it violates the similar law profit------the regulation of financial reputation. Lastly, it also violates the direct law profit------the right of financial institution to use funds and the security of credit funds.This crime has the same cheating behavior as the common crime of victimization. Two aspects are included:one is fabricating, and the other is concealing, and the essence of them is to make the injured party have a wrong judgement. The basic construction of this crime is identical with that of the crime of finance fraud. The object of this crime is "loan, bills acceptance, letter of credit and letter of guarantee, etc in bank or other financial instution", and it means that, on the one hand, the injured party is confined to bank or other financial setup, on the other hand, the accurate object that someone desires to acquire by fraud is loan, bills acceptance, letter of credit and letter of guarantee, etc.The specific cheating act includes as follows. Firstly, fabricating act such as introducing funds and projects from elsewhere; secondly, using false economic contract; thirdly, using invented certificate; fourthly, using invented papers of property right to guarantee or reguarantee by using the low security; fifthly, using other illegal ways to acquire loan or reputation. The Criminal Law of People’s Republic of China(amendment VI) stipulates that it is not criminal until "it brings about enormous losses to bank or other fiancial setup, or other grave circumstances". So, this crime is consequent offense or circustance offense.As far as the subject is concerned, the subject of this crime is the natural person or artificial person who puts into practice jeopardizing the regulation of financial reputation, violating or threatening the right of financial institution to use funds and the security of credit funds, and consequently is responsible for his act. The offence of this crime includes direct intent and indirect intent, and direct intent is the major. Specific goal is not the necessary factor of this crime, so it belongs non-goal offence. As long as one has a subjetive idea to implement cheating, and objective definite number or circustance, the crime will be tenable. Whether the suspect has the illegal purpose to possess should be proved with the legislative deducement and the correlated spirit of summary from Supreme People’s Court.Two aspects of intent are included in the crime:having the desire to acquire loan or financial reputation and using them after obtaining.This article states the form of this crime, accomplished and unaccomplished form, accomplice form and form of the quantity of crime. Because this crime is consequential offence and offense by circumstances. Under the condition that the doer obtains the loan or the credit from bank or financial agency by deceive means and causes serious damage, the consequence of the serious damage is the condition of incriminating and the standard of accomplished offence. The circumstance in the offence is a concept to reflect the degree of offense, on the other hand, when the circumstance in the offense doesn’t conform to the requirements of offense by circumstances, it will not be identified as criminal. This kind of crime which takes circumstance as the essential part can only be distinguished between guilty and not guilty, but not judged by accomplished or unaccomplished, so there is no possibility of existence of criminal pattern. From this, the study of the unaccomplished form means that it is carried out in the consequence offenses which cause "heavy losses". If there is no consequence of heavy losses, it belongs to the unaccomplished form. The common criminal form of this crime is natural person complicity, complicity of both natural person and unit, and unit complicity, and it often happens in the judicatory practice to identify and deal with the collusion of inside and outside, The personnel in charge of loan, bill acceptance, issuing letter of credit, letter of guarantee can play the role of complicity with other personnel, but when specifically identified, according to the detailed statement of the crime and all the evidence in control, the proper accusation shall be given according to the Criminal Law and the related regulation of judicial interpretation. The collusion of inside and outside to take advantage of the ministration in the office and cheat for the fund from the company, which constitutes this crime and other crime, (such as issuing the illegal loan), are all belong to imagination accomplice and shall be punished in form of felony. In addition, the author considers that partial accomplice will not constitute the accomplice. Meanwhile, the article analyzes the factors about the conviction sum of this case, points out that the problem to determine the commitment to the accomplice shall include 2 factors:conviction sum and measurement penalty, and the sum shared by the accomplice criminals shall be inspected from conviction sum and measurement penalty sum. The issues to be solved are different so the standard of sum shall also be different. The crime sum of this case is related to legal item co-petition, implicated offence and continuous offence. In terms of legal item co-petition, there are the co-petition of the crime of loan fraud, crime of cheating loan and crime of transferring loan at high interest, etc. when the doer activity both confirms to the regulation of the crime of cheating loan and to the regulation of the crime of loan fraud, he will be punished in terms of crime of loan fraud. Meanwhile, when the co-opetition is related to the cheating for bill acceptance, letter of credit, letter of guarantee and document crime of swindling, crime of swindling of financial credence, crime of swindling of letter of credit, the punishment will always be done according to corresponding financial crime. When dealing with the co-petition of crime of cheating loan and crime of transferring loan at high interest transferring loan at high interest, it mainly depends on the subjective aspect of the doer. About the issue of implicated offense, the implication is mainly related to fakeness, variation, theft and to this crime and bribery. And the punishment will be decided according to the most serious crime. The continuous offense of this crime will be embodied in detailed practice as cheating the financial credit continuously, loan for instance, and the punishment shall be decided according to this crime and heavier punishment shall be carried out.As for the limitation problems, this article analyzes the limitation of civil and criminal of this crime, as well as the limitation of this crime and other-related crime. For the former type of limitation, it is necessary to grasp the limitation of this crime and loan dispute, this crime and general deeds of cheating loan. Dealing with such issues, we must be in accordance with the provisions of law to make an accurate delimitation of different crimes. Meanwhile, fully apprehension of relevant provisions of Article 13 of the Criminal Law is needed to confirm this behavior guilty or not. This article considers that in practice this crime has a lot in common with crimes of financial fraud (crimes of loan fraud, bills fraud and letters of credit fraud, etc) and crime of transferring loan at high interest, so different types of crimes should be identified according to different descriptions of criminal facts. In the Perfection of Law-making Construction of System part, this article makes a further analysis about the legislation on Crimes of cheating loan, bills acceptance, finance tickets from different angles, and proposed improvements through three aspects, first of all, increase the object of victims in this crime; secondly, someone who default loan for a long term should be defined guilty; thirdly, the configuration of penalty should be further improved.