The Misuse And Correction Of The Judicial Application Of Loan Fraud

In order to crack down on financial crimes and tighten the criminal law network,the Standing Committee of the National People's Congress passed the amendment to the criminal law(6)in 2006,adding the crime of loan fraud to protect the development of China's financial industry.Since 2006,this crime has shown an obvious expansion trend in judicial application,which is also one of the manifestations of the expansion trend of financial crime in recent years.The first chapter introduces the topic and analyzes the problem.By studying the cases of China judicial document net,the characteristics of the expansion and application of this crime can be shown more intuitively in the form of charts.Since the establishment of this crime in 2006,the number of cases has increased rapidly.Although there are many reasons,it can reflect the expansion and application of this crime to a certain extent.Further analysis of the causes of the problem shows that there are two main reasons for the above characteristics of the application of this crime: first,the protection of legal interests of this crime is not clear.In most court judgments,"financial management order" is regarded as the protection legal interest of this crime,while a few courts also regard "ownership of loan funds of financial institutions" or "security of credit funds" as the protection legal interest of this crime.The indefinite protection of legal interest is the basic reason for the expansion of the application of this crime.Second,the interpretation of the constitutive requirements of this crime is too principled and not specific.Most courts overemphasize the principled reasons of "serious circumstances" and "heavy losses",but they fail to explain "serious circumstances" and "heavy losses".Because there is no judicial interpretation,different courts have different understandings,which leads to the expansion of the application of this crime in some cases.In this way,the crime of defrauding loans is reduced to the crime of pocket,which blurs the boundaries of civil disputes,administrative penalties and criminal crimes,wastes criminal judicial resources and hinders the free development of the socialist market economy.The second chapter focuses on the analysis of the protection of legal interests in the crime of loan fraud.In the dual theory of legal interest,legal interest is divided into individual legal interest and collective legal interest.The legal interest of this crime should be collective legal interest.Taking the financial management order as the legal interest protected by the crime is too general,confusing the concept of the same object and the single object,and improperly expanding the scope of punishment of the crime.The protection of legal interest of this crime should be thesecurity of credit funds of banks and other financial institutions.The most essential reason why the security of credit funds of financial institutions deserves the protection of criminal law is the publicity of their funds.The third chapter analyzes the constitutive requirements of the crime of defrauding loans.Different types of crime have different constitutive requirements.The author believes that the crime of defrauding loans is a result crime,not a behavior crime and not a plot crime.Among them,"obtaining loans from financial institutions by means of deception" is a practice,and "heavy losses" and "serious circumstances" are the results of crimes.According to the provisions of the Ministry of public security of the Supreme People's Procuratorate on the standards for filing and prosecution of criminal cases under the jurisdiction of the public security organs(II),"major losses" refer to economic losses of 200000 yuan or more caused to financial institutions such as banks,"serious circumstances" include two kinds of acts of swindling loans of more than 1 million yuan from financial institutions such as banks and multiple swindling loans.The fourth chapter is to find a reasonable way to limit the scope of application of the crime.After making clear the legal interests and constitutive requirements of the crime of defrauding loans,it is necessary to recognize the boundaries between crime and non crime,and divide the boundaries between the crime and other financial crimes.We should reasonably determine the amount of loan fraud,adapt the crime and punishment,and reasonably measure the punishment.