On The Overlap And Division About Criminal And Civil Law Of Frauds In Both Guarantee And Loan

The so-called "double-fraud",as the name suggests,refers to the perpetrator use the first fraud as a basis for the second fraud.In reality,such cases are not an exception,and the clear conviction analysis and path is very lacking.In judicial practice,the judgment of the behavior constitution is often taken directly from the angle of criminal sanctions to make the choice of the crime,which leads to different judgments in the same case.Even the choice of criminal offences is entangled in the assumption of civil liability.Under the traditional concept of" criminal cognizance priority to civil cognizance ",it is difficult to guarantee the reasonable space for the recognition of civil property.Therefore,before solving the specific conviction and sentencing issues,we must first make a clear division of the concept of criminal and civil fraud.Therefore,the purpose of this paper is to determine the illegal attribute of "double-fraud",on the basis of dividing the establishment of criminal fraud,the problems such as judgment of constitutive requirements,victim's fault and the sharing of civil liability should be discussed and analyzed deeply.First of all,in order to avoid the expansion of the scope of criminal punishment under the logic of "criminal cognizance priority to civil cognizance",it is necessary to determine the boundary between civil fraud and criminal fraud.The mainstream view of the current theoretical research includes the intent of illegal possession,the determination of loss result and the identification of content scope,which more or less have certain defects and omissions.Therefore,on the basis of the above-mentioned views and theories,this paper puts forward a new proposition of "false trading" as the core of differentiation,and conducts comprehensive consideration and specific analysis from the transaction identity to the transaction results.Secondly,once the classification criterion of criminal and civil fraud is determined,it is necessary to further explain and judge the conformity of the specific crime.In detail,we should analyze the type of criminal fraud specifically from the perspective of deciding loss component which is the core of fraud.The key is,how many types of property damage exist in double-fraud cases?Therefore,we should not only reflect the logical structure of "civil loss reversal criminal determination" in the traditional solutions,but also re-examine the special property value of the security right itself,and consider their interrelations on the basis of the establishment of several crimes to determine the final conviction.Then,throughout the crux of financial institutions' misperceptions,it is necessary to admit the existence and interference of victim's fault.The organization's own slackness and dereliction of duty often lead to serious examination and approval errors,which contributes to the wrong division of legal responsibility.However,leaving aside the impact of the sentencing,the constitution of fraud crime also needs to be carefully judged and weighed in the case of special fault caused by unlawful payment.In practice,the great pressure of the "disposal of bad loan" often leads to private "non-performing assets"disposal transactions between financial institutions and borrowers,thus resulting in negligence and slackness under the application review.In the context of the denial of claim for return,is the amount of unlawful payment thus excluded from the result of the fraud?In other words,it is necessary to explore whether the exclusion of the right to claim for the return of the property in the payment of unlawful cause will lead to the obstacle of constitution of the fraud crime.Finally,the sanction of criminal offences can not replace the compensation of civil rights and interests,it is necessary to consider how to share the responsibility of compensation after the determination of fraud crime.On the one hand,the validity of the guarantee contract must be explored.Because of the nature of dependence,the examination of the actual effect of the guarantee contract needs to be determined by means of the loan contract.Under the premise of the identification of criminal illegality,the inquiry of contract effectiveness seems to be based only on the understanding of the law,but the key is how to seek the legality and legitimacy of independent judgment under the reasonable requirement of the unity of legal order.On the other hand,it is necessary to examine the impact on responsibility under the fault of victim.Although the conviction is irrelevant,the impact of the victim's fault must be reflected in the sentencing,especially in the assumption of civil liability.In view of the fact that in the past financial institutions have always been diligent in transferring risk and neglecting to regulate and constrain,considering a certain amount of relief for the responsibility of the infringer is not only a punishment for the fault of the financial institution,but also a reasonable distribution of property interests.