The Crime Of Judicial Cognizance Question Research Postgraduate Of And Commercial Law:Chen Xiaojun

With the development of our country’s economy, the continuous expansion of loan finance, the demand for money is becoming more and more big.The loan has also become an increasingly important role in the social and economic life.The exists of mortgage fraud makes financial institutions threatened the lawful property ownership, destroy the stability of the economic order in our country.How to protect the financial system, how to reasonable regulation through law is an important problem.At present, China’s legislation on this subject is not sound, rigorous, specification, and led to many difficult problems of the judicial cognizance. In order to improve the level of judicial application, both from theory and practice point of view, it is necessary to study loan fraud of judicial cognizance.At first,this article describes the legislative situation including the crime legislation evolution and the simple difference with other charges. In 1979, for example, our country’s criminal law has not stipulated the crime of fraud of the loan, It become more perfect as the development of laws and regulations. We can see legislation in our country is still insufficient regulations, that directly and indirectly leads to a series of problems in the judicial, such as identifying and unified. From the actual situation, a lot of understanding is different, The trial is not accurate occurs from time to time, so,it is necessary to judicial cognizance question to be discussed further.There are many difficult problems in the judicial practice of crime of fraud. Mainly two points: one is the absence of legislation to set the judicial application of disputes. The main problem in performance, most scholars believe that such as should set up the unit crime of fraud. The second is the legislative theory and the judicial recognition of technical constraints lead to differences. Such as the crime object is eligibility、the loan amount size、time and space conditions> illegal behavior patterns that holds that aim to produce practice, etc. The deviation of these factors lead to the results of the decision to directly.In summary, in order to make the analysis of comprehensive-, rational, This article will analyze from several angles.At first, the cognizance of the characteristic of objective, namely in addition to the four legal behavior, focus on "other ways loan fraud" behavior cognizance; On the stage of time, in view of the issues, focus on whether the loan fraud exists only in the loan contract signed, contract fraud can occur in both of the contract conclude phase, can also occur in the stage for the implementation of the contract. At second, the characteristics of subjective cognizance, detailed the content of the intentional, and whether the formation time of illegal possession purpose, confined to borrowers with myself. At third, the cognizance of the characteristic of the main body, the key for the current academic circles is widely discussed and support unit loan fraud behavior are discussed, at the same time, the bank or financial institution staff alone or participate in loan fraud behavior and discusses the qualitative. At the last, in the cognizance of objective characteristics, the eligibility of criminal object is, scope of infringement of rights and interests of discussion and loan amount is discussed. Most above four aspects, this article, from the perspective of the theory, analysis of different theories in different legislative idea and the judicial practice of the trial suggested that in order to find the better way of identifying controversial Angle and the academia, and also puts forward some ideas about the proper, in order to in actionable range, using the experience of domestic and foreign related legislation and judicial practice, and considering the impact on the market economy, in order to find the ways to solve problems.