| At present, the financial crimes such loan swindling are increasingly rampant and, in some extent, have become the important factor causing regional financial risks and crisis and impeding the development of China toward the market economy. Due to legislative causes, the law enforcers face a lot of difficulties in determination and handling of this type of crimes. This article attempts to probe into the legislative evolvement, concept, structure, characteristics and distinctions from other crimes of the crime of loan swindling, research into the problems encountered and a few points worthy of attention in the determination and handling of such crime, discuss the legislative improvement, and put forward a few suggestions for prevention of such crime, aiming at being helpful for settlement of the related problems. The loan swindling, also known as loan fraud, is a crime happening in the financial sector. During the legislative evolvement in China in this respect, the crime of loan swindling derived from the crime of swindling and is also a product of the market economy. The crime of loan swindling is "fraud" in nature, seeking embezzlement of loans from the financial institutions through fraud means. The Chinese legislative authority has fully realized the essential feature of the crime. The Criminal Law of P. R. China amended in 1997 includes the provisions on "Crime of Financial Swindling" under Section 5 "Crimes of Financial Swindling" of Chapter III "Crimes of Undermining theSocialist Economic Order" of Part Two "Specific Provisions". Article 193 of the Criminal Law provides for the crime of loan swindling, stating that any of the following categories of persons who, for the purpose of illegal possession, swindles a loan of a bank or other financial institution shall, if the amount involved is relatively huge, be sentenced to......: (1) those who fabricate false reasons such as introduction of funds or projects; (2) those who use false economic contracts; (3) those who use false documents of certification; (4) those who use false property certificates as guarantee or guarantee repeatedly by exceeding the value of security; or (5) those who swindle loans by other means. In general terms, the act of loan swindling is taken in two forms: illegal possession and false statement. The illegal possession refers to such act that the actor gains and directly appropriates the loans by fraud with a subjective intention to seize the loans. The false statement refers to the actor's act to, where he does not satisfy the conditions for loan, gain the loans by fraud with the only intention to use the loans. The Criminal Law of P. R. China of 1971 provides for the former act under Article 193 and the latter act is deemed as common loan fraud instead of a crime. This is different from the foreign legislation, for example, German law states that the credit and loan swindling includes not only the act to gain loans by fraud, but also the bill fraud; In Russia, not only the act to appropriate loans without intention of illegal possession, but also the act with afterward intention of illegal possessionconstitute the crime of loan swindling; In the U.S., the defendant shall be deemed to commit the crime of loan swindling if his provision of main facts to the loan institution is based on an express intention to impact the decision of the loan institution and constitutes false statement.The direct object of the crime of loan swindling in Chinese law is the ownership of the loan by the financial institutions. The objective aspect of the crime of loan swindling (the "Crime") can be summarized in five situations and, in nature, refers to the act to gain loans with false reasons, certificates or other means. The subject of the Crime is limited to the common subject, i.e., the natural person. The actor to commit the Crime shall be in a direct intention in his subjective status and for a purpose of illegal ownership of the loan. There are a few controversial issues with respect to the Crime, for exam... |
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