Research On The Purpose Of Illegal Possession In The Crime Of Loan Fraud

Article 193 of the Criminal Law of the People's Republic of China stipulates that the crime of loan fraud refers to the act of defrauding a bank or any other financial institution of loans for the purpose of illegal possession and the amount involved is relatively large.With the development of the economy and the deepening of the theoretical research on criminal law,the Criminal Law Amendment(6)has added the crime of cheating loans.If the perpetrator obtains a loan by means of fraud,subjectively does not possess the purpose of illegal possession or proves that the purpose of illegal possession is insufficient,and the loan that cannot be returned eventually is deemed to be the crime of fraudulent borrowing.The essential difference between the two crimes is the subjective possession of the purpose of illegal possession.Thus,the identification of the purpose of illegal possession is the key and difficult point in judicial practice.The meaning of the non-possessed purpose is controversial.The “theory of excluding the intention”,“theory of utilizing the intention”,and “theories of eliminating the intention and using the intention” of the Japanese criminal law filed have a great influence on domestic research.In combination with the purpose of setting up the crime of loan fraud,the compromise of theory of excluding the intention and theory of utilizing the intention is more reasonable.It is called illegal possession in China and becomes a widely accepted theory.Regarding the nature of illegal possession,some scholars have argued that it can be directly identified through the criminal objective behavior,which is included in the crime intention;some scholars argue that the purpose of illegal possession is an extra subjective element and is independent of the crime intentionally.The purpose of illegal possession is more reasonable than the subjective element of the argument,otherwise it will be difficult to distinguish between the crime of loan fraud and the crime of cheating loans.Through empirical research,it has been found that there are many problems in the judicial identification of illegal possession of loan fraud.Convictions based on crimes and criminal consequences lead to serious objective incrimination;there is a tendency toward judicial minimalism and the neglect of illegal possession.The unclear distinction is made in the timing of illegal possession,which leads to the inconsistent judgment of the court on the case of “repayment of old loans with new loans”.The basis for the judicial identification of the illegal possession of loan fraud crimes is mainly the Minutes of the National Colloquium on the Trial of Financial Crimes issued by the Supreme People's Court on January 21,2001.The nature of the document is not a judicial interpretation,and the content of the provision is not entirely reasonable.There are problems with the rigid and application,objective incrimination,and misuse of the details when it is specifically applied.In order to solve the problems existing in the judicial determination of illegal possession of loan fraud,it is proposed to introduce criminal presumption,perfect the legal basis for identifying illegal possession,and improve the method of identification.It is hoped that through the research of the paper,certain help can be provided to the judicial determination of the illegal possession of loan fraud.