Study On Crime Of Obtaining Loans By Fraudulent Means

Since an article was explicitly inserted after Article 175 as Article 175(I)to include the crime of loan obtainment by fraudulent means in the scope of criminal punishment in the Amendment(VI)to the Criminal Law of the People's Republic of China,the cases of loan swindle have increased year by year.Starting from 2014,every year there have been more than 1,000 loan fraud cases.Difficult problems that are imperative to be solved and precious practical experience have been accumulated in judicial practice.This paper,based on judicial adjudication as the research basis,sorted out and summarized patterns of addressing difficult problems,combined criminal law theories to analyze problems such as components of principal crime,crime and non-crime,this crime and that crime,and illustrated the feasibility and necessity of authoritative interpretation announcement.The paper covers three parts.Part one of the paper illustrates the issue of identifying “banks or other financial institutions”,objects of the crime of loan obtainment by fraudulent means.It sorts out the identification opinions in the theoretical circles regarding disputes over the criminal law nature of small loan companies,and demonstrates positive and negative arguments.At the same time,based on common judicial practice,it re-interprets the criminal law nature of small loan companies,refutes the identification bases for negative arguments on a pertinent basis,and maintains that small loan companies should be regarded as “other financial institutions”.Part two of the paper focuses on the issue of identifying “by fraudulent means”,the behavioral pattern of the crime of loan obtainment by fraudulent means.First of all,it shows different opinions about forms of “fraudulent means” in the academic circle and holds that the forms of “fraudulent means” in the crime of loan obtainment by fraudulent means are basically consistent with the “fraud” forms in the crime of loan fraud after analysis.Second,it analyzes factors influencing establishment of the cause-effect relationship between “fraudulent” and “obtainment”.It's concluded that both formal requirements and degree limitations exist for “obtainment by fraudulent means”.Fraudulent behaviors should be enough to make general staff in financial institutions reduced in wrong cognition;otherwise,it's not fraudulent.To judge whether made-up loan usage belongs to fraudulent means or not should not answered negatively by fraudulent forms;instead,concrete judgment should be conducted on the basis of fraudulent degree.In the end,when staff in financial institutions know the perpetrator has fraudulent behaviors yet still issue the loan,it's unnecessary to distinguish the substantial role of banking staff in the process of the loan distribution.If banking staff know it clearly,then the cause-effect relationship between “fraudulent” and “obtainment” is discontinued.Part three of the paper mainly explains the issue of identifying the “plot” in the crime of loan obtainment by fraudulent means.First,it introduces four cases to demonstrate and analyze the judicial application status quo in principal crimes,and states that under current laws and regulations on principal crimes,the possibilities of excluding the application of the second-level sentencing,punishment against freedom and “On-Record Prosecution Standard(II)” exists.In addition,it goes on to explore causes for such phenomenon and maintains that on the one hand,the theoretical circles cannot agree upon the composition model of principal crimes and on the other hand,it falls short of identification standards for “plots” in legislation.Second,it offers a concrete interpretation of identifying “any serious loss or any other serious consequence” and remarks that the calculation of losses of banks or other financial institutions should be subject to the registration in the public security bureaus.However,if the registration is earlier than the repayment period,it should be subject to the repayment period.Besides,it points out that the “loss sum” in the written judgment should be explicitly elaborated.The borrower obtains the guarantee of the guaranteeing organization in the process of obtaining bank loans by fraudulent means.Under the circumstance when the loan is due and the perpetrator cannot to repay it,which becomes the responsibility of the guaranteeing company,the loss of the guaranteeing company cannot be deemed as the loss of banks.However,the perpetrator can still constitute the crime of loan obtainment by fraudulent means even if not having “purpose of illegal possession”.Last but not least,it elucidates in detail the identification of “extremely large loss or any other extremely serious circumstance” in promotion of statutory punishment.Sentences that involve set term of imprisonment on perpetrators under circumstances of “any serious loss” or “any other serious consequence” in judicial practices are collected,and their identification sums are integrated and sorted out to propose standards for identifying “any serious loss” and “any other serious consequence”.