Research On The Crime Of Fraudulent Loan

With the rapid development of the economy,financial services are also undergoing significant changes.What is more prominent is that financial fraud has become increasingly rampant and the security of financial loans has been greatly threatened.To this end,on June29,2006,the "National Criminal Law Amendment(6)" clearly established the crime of fraudulent loans.The establishment of the crime of fraudulent loans has more effectively regulated the behavior of fraudulent loans,providing the most stringent legal guarantee for the stability and development of the financial market,thus better safeguarding the financial order.However,in the past 13 years since the establishment of the crime,along with the development of the economy and the financial industry,the application of the crime of fraudulent loans has gradually revealed many problems,such as the determination of the behavior of fraudulent loans,the judgment of specific means,and the design of criminal objects.The content of "significant loss" and "serious plot" must be further considered.At the same time,since the crime of fraudulent loans was established,the academic research on this crime is relatively weak and the results are few.Therefore,theoretical discussion on the crime of fraudulent loan has important theoretical and practical significance.The article mainly uses literature research method,comparative research method,comprehensive analysis method and case analysis method to investigate the legislation inside and outside the crime of fraudulent loan,analyzes the constituent elements of the crime of fraudulent loan and grasps the relevant limits in the identification.The deficiencies and improvements in the legislation of fraudulent loans have been discussed.In addition to the introduction and conclusion,the article is divided into four parts.The first part is to defraud the legal investigation inside and outside the crime area.First of all,the article sorts out the legislative evolution of the crime of fraudulent loans in China,and analyzes the dispute over the idea of establishing a crime of fraudulent loans.Although some people are skeptical about the addition of this crime,they believe that "the establishment of this crime has over-expanded financial criminal legislation and the scope of the crime is too wide." However,the article believes that this view is one-sided and will not be fraudulent for illegal possession purposes.Act crimes,set up a crime of fraudulent loans in addition to the crime of loan fraud,is more conducive to maintaining the credit security and financial management order of financial institutions;Second,the article list compares the typical law of the civil law system and the common law system in the United States onfraudulent loans Legislation,summarizing the relevant legislation outside the domain has the following characteristics:(1)the implementation of clear behavior.(2)The number of fraudulent objects is limited.(3)The scope of fines is clear.The reasonable content of extraterritorial legislation is worth learning.Comparing the legislation inside and outside the study domain has laid an important foundation for a more comprehensive understanding of the legislative content and deficiencies of China's crime of fraudulent loans.The second part is about the elements of the crime of defrauding loans.According to the traditional crime constitution theory,the crime of fraudulent loans also has four components:(1)The object of the crime of fraudulent loans has different views in the academic world.The article considers that the criminal object of fraudulent loan is the financial management system and the financial management order.The criminal law stipulates that the crime of fraudulent loan is the loan of a bank or other financial institution.How to understand the financial institutions here? Based on the analysis of the nature and scope of banks and other financial institutions,the article focuses on the nature of microfinance companies that have emerged in recent years.It is believed that although microfinance companies have the function of loans,some people think that administrative law It is regarded as a“quasi-financial institution”,but it is not a financial institution in the true sense.Therefore,according to the principle of a legally prescribed punishment for a crime,according to current criminal legislation,it is not appropriate to regard it as a financial institution,as a deceptive object of fraudulent loans.In the face of the increasingly prominent phenomenon of microfinance company loans being defrauded,only the legislation can be supplemented;(2)the objective aspect of the crime of fraudulent loans,first of all,the article analyzes the practice of fraudulent loans,that is,deceptive behavior On the basis of the basic content,the specific manifestation of fraudulent loan fraud behavior is further explored: fraudulent loans are obtained through fictitious loan conditions,fictitious loan reasons,and fictitious repayment ability.At the same time,the article also analyzes the fraudulent behavior of inaction,and believes that inaction is also The behavior of this crime;Secondly,the article explores the causal relationship between the crime of defrauding loans and “fetching” and“taking”.In addition,the act of fraudulently obtaining a loan constitutes a crime and must meet the criteria for conviction,that is,“causing a major loss or other serious circumstances”.(3)The criminal subject of fraudulent loan liability includes not only natural persons who are criminally liable at the age of 16 but also units.The unit is included in the scope of the subject,and a new situation is provided for the case of defrauding the loan by the company's power when determining the crime of fraudulently obtaining loans.Ideas;(4)There are differentopinions on the subjective aspects of the crime of fraudulent loans.The article believes that the sinful form of fraudulent loans is intentional,including direct intentional and indirect intentionality.Negligence cannot constitute this crime.The crime of fraudulently obtaining loans does not require the purpose of "illegal possession".The article discusses how to determine whether the perpetrator has a purpose,and whether there is no purpose,and how to determine the purpose of "illegal possession".The third part is the identification of the crime of fraudulent loans.To determine the crime of fraudulent loans,we should pay attention to the following aspects: First,the distinction between fraudulent loans and general loan behavior.The second is to defraud the loan crime,that is,the completed form and the unfinished form.The third is the boundary between this crime and his sin.The article compares the crime of fraudulent loans with the crime of high-profit transfer and loan fraud.By analyzing the similarities and differences between the crime of fraudulent loans and his crimes,he can understand the crime of fraudulent loans more deeply.The fourth part is the legislative flaws and perfection of the crime of fraudulent loans.The provisions of Article 175 of China's Criminal Law on the crime of fraudulent loans provide a clear basis for conviction and sentencing in practice.However,with the changes in society,the crimes of fraudulent loans,the standards of conviction and the punishment measures gradually emerged.The article puts forward the perfect suggestions for expanding the criminal object,clarifying the standard of sin and perfecting the penalty measures,so that the legislation on fraudulent loans is more perfect and reasonable.