The Research On The Judicial Determination Of Crime Of Fraudulent Loans

The crime of fraudulent loans was made early on the “Criminal Law Amendment(VI)”,ten years have past since then,the author's case searching found out the crime increase dramatically on recent years.The mounting cases as to the fraudulent loans gave rise to greater losses to financial institutions than before,which deserved more public attentions and thinking.This article wrote from the legal practicers' perspective.With the analysis of cases and giving attention to the acts of fraud and its characteristics,the nature of the loss and circumstances hereof,and the bank's loan reviewing process and the internal employees' reviewing duties,the author stated from the specific types of act and the cases hereof,and conducted in-depth research on making up loan reasons,faking certification documents,providing fake guarantees,loans in the name of someone else and other different levels of fraud and their impact on the conviction.The author also looked into the meaning of “exclusion intention” of “illegal possession” to clearly define the elements of this crime and to differentiate this crime from civil loan disputes and loan fraud.On the one hand,the borrower's ability to repay the loan and the source of its repayment are the most important factors to be considered in the Bank's approving process,the determination of “fraudulent act” would be based on this,while making up loan reasons and faking loan application materials shall be judged more seriously.In practice,the modesty of the criminal law should be maintained.In this case,non-criminal laws should prevail.The criminal law shall be applied at last.On the other hand,the “cheating” act of fraudulent loan crime is consistent with the “fraud” act of loan fraud crime.The main difference between the two in crime constitution is the purpose of “illegal possession”.As a result,in practice,to differentiate the two crimes may be based on the recognition of the intention of loan repayment,the using of loans and the solvency ability and other factors.