The Study On Several Problems Of The Crime Of Defrauding Loans

Before the promulgation of Amendment 6 to of the People's Republic of China, the Crime of swindling loans and the Crime of relending at high interest rate are the main accuals of the criminal penalty for the crime of loan fraud. However, their legislation mode of intent crime brings huge difficulties to the judicial proof. Many people escape from the criminal punishments because their intent cannot be proved. Taking a global view, many foreign developed countries have their own legislation mode of punishing the crime of loan fraud which is worth learning. In this case, after considering the reality and the foreign legislation mode, the legislatures of China add Crimes of defrauding loans, acceptance bill and financial warrant to the Criminal Law through Amendment 6 to the Criminal Law of the People's Republic of China. The newly-added accusal adopts the legislation mode of non-intent crime, which doesn't need to prove"the purpose of the illegal possession". What's more, this article is just applied when any serious loss is caused to the bank or financial institution or any other serious consequence has resulted. The legislative design of this accusal not only makes the criminal net tighter and offers a solution to the problem of judicial determination, but also prevents the scope of criminal circle from over-expansion. It is a reflection of the values of the restraining criminal law. Nevertheless, the problems accompanying the new accusal become a new challenge to the legislation research and judicial practice, for example, the differences and the coincidence of articles among this accusal , the Crime of swindling loan and the Crime of relending at high interest rate.Because this accusal is a alternative charge, the writer just studies on the Crime of defrauding loans. This thesis is divided into four Chapters. Chapter one gives an analysis of the reasons and the necessity of this legislation after considering domestic and abroad legislative circumstances. Chapter two comprehensively elaborates the characteristics of constitutive elements of the Criminal of defrauding loans, particularly points out that subjective fault is direct intention and the actus reus could be shown as omission, then defines"the great loss"and"the other serious circumstances"in detail. Chapter three clarifies the judicial determination of the Crime of defrauding loans by making studies of the classification of crime, the criminal patterns and the comparison among the Crime of defrauding loans, the Crime of swindling loans and the Crime of relending at high interest rate. Especially, through a study of the differences and the coincidence of articles among this accusal , the Crime of swindling loan and the Crime of relending at high interest rate, the writer proposes the idea that the three accusals function as mutual transversal preventing articles of the crime of loan fraud, and gives an analysis of the possibility of designing a lengthways preventing article for the Crime of defrauding loans. Chapter four analyzes the advantages of the legislation, like it can make the criminal net tighter. However, this writer also points out the inconsistency between the legislation and the in the conditions for the establishment of crime and indicates the deficiency of the prosecution standards in < Prosecution Standards Two>. Finally, in the hope of providing helpful reference for the legislative research and judicial practice, the writer puts forward suggestions about the perfection of legislation of this accusal, like adding"defrauding a huge amount of loans"to the rank of the constituents of this crime.