A Research On Crime For Fraudulence Of Loans And Financial Credit Vouchers

The crime of fraudulence of loans and financial credit vouchers is newly added to Article 10 of the Sixth Amendment to Criminal Law, and is an important measure to criminate economic illegal behaviors. It not only brings new ground for financial crime research, but also new challenges to the juridical practice. Therefore, the thesis explores some difficulties and popular questions concerning its theoretical research and juridical practice. The whole thesis is divided into three parts.I. On crimination of fraudulence of loans and financial credit vouchersThe development of market economy and the crimination of economic illegal behaviors are not contradictory. The economic illegal behaviors that do serious harm to the society should be criminated through the Criminal Law. However, the crimination should also be consistent with the economic development of the country and the needs of the society. Only under the situation that civil and administrative measures from other law departments can not contain the crime can the Criminal Law be used as the last means of adjustment. The addition of the crime of fraudulence of loans and financial credit vouchers to Article 10 of the Sixth Amendment to Criminal Law embodies this principle completely. Compared with the prescription of this kind of behaviors as crime and the establishment of a relatively low criminal threshold in many foreign countries, the legislation movement in our country reflects the prudential attitudes of the legislators and the urgent needs of the society. The addition of the crime meets the inevitable need of maintaining state financial order and credit safety, and the need of fulfilling the last guarantee function of Criminal Law. The thesis explores the crime from scientific, systematic and predictive aspects. It holds the view that the crimination of fraudulence of loans and financial credit vouchers can better embody the harmony and consistency between the Criminal Law and finances, the crime's situation in real life, the needs of the society and its place in financial crime system, and brings the preventive and frightening functions of the Criminal Law into play.II. On the constitutive elements of the crime of fraudulence of loans and financial credit vouchersOn constitutive elements, the crime of fraudulence of loans and financial credit vouchers has it own distinctive characteristics: its object is a complex one, including national financial management order, and lawful rights and interests of financial institutions. The financial management order includes credit and financial instrument management order. The lawful rights and interests of financial institutions infringed are represented by credit safety of financial institutions on a large scale, and rights of financial institutions to earnings and use of capitals and credits. From the objective aspect, the crime is the fraudulence of loans, bill acceptance, and letter of credit, letter of indemnity from banks and other financial institutions, which causes serious damage or involves other serious behaviors. The cognizance of the means of cheating, the object and the lawful outcome are very important in juridical practice. The object of the crime is common one, including natural persons and units. On subjectivity, it is intentional. The paper rebuts the view held by some scholars that the subjectivity of the crime includes being unintentional, and puts forward that its subjectivity should include direct intention and indirect intention. The thesis puts emphasis especially on the point that the crime does not require specific subjective aims, but it can not deny the fact that the doer has a subjective aim while committing the crime and usually the aim of appropriation.III. Judicial identification of the crime of fraudulence of loans and financial credit vouchersThe thesis differentiates the crime and non-crime of the crime of fraudulence of loans and financial credit vouchers, the crime of fraudulence of loans and financial credit vouchers, the crime of transfer of usurious loan, the crime of fraudulence of loans and the crime of fraudulence of letter of credit. The subjective aims of appropriation and transfer of usurious loan is the key to differentiating the crime of fraudulence of loans and financial credit vouchers and other related crimes. If the doer has the aim of appropriation which involves a relatively large sum of money, the crime is identified as contract fraud crime. If the doer obtains the loan by fraudulence without the aim of appropriation and transfer of usurious loan, which does great damage to financial institutions such as banks or involves other serious acts, the crime is identified as the crime of fraudulence of loans and financial credit vouchers.As for the crime numbers of the crime of fraudulence of loans and financial credit vouchers, the thesis mainly discusses the crime number concerning forgery and alternation of financial vouchers and forgery of seals of companies, enterprises, institutional units and people's organizations for fraudulence of loans and financial credit vouchers. As far as the first case is concerned, the thesis insists on punishment for committing one crime according to the theories of continuing crime, plural crime and several counts of the same crime. As for the second case, the thesis insists on punishment for committing a felony according to the principle of punishment for implicates offenders.As for the complicity of the crime, the thesis mainly discusses the problem of staff from financial institutions colluding with outsiders to defraud the institutions of loans, and the problem of warrantor using fake warrants for fraudulence of loans. As for the first case, if the staff has nothing to do with credit screening, he becomes complice of the crime; if he offers loans by taking advantage of working convenience of credit screening and taking bribes, he is not complice of the crime and should be punished as the imaginative joinder of offences for committing the crime of bribery or commercial bribery, and for extending loans or issuing financial vouchers illegally. As for the second case, the intentions of the warrantors and doers should be taken into consideration during the process of identification. If the warrantor clearly knows the doer's intention of illegal ownership when providing fake warrants for him, no matter whether he himself has the intention of appropriating the capitals, he should be accomplice of the crime of fraudulence of loan; if the warrantor clearly knows doer's intention of fraudulence of loan and is not aware of the doer's intention of illegal ownership, he can become accomplice in the range of the crime of fraudulence of loans and financial credit vouchers. Under this circumstance, the warrantor commits the crime of fraudulence of loans and financial credit vouchers and the doer commits the crime of fraudulence of loans. If the doer only has the intention of fraudulence of loan which the warrantor knows clearly, they both commit the crime of fraudulence of loans and financial credit vouchers.