The Limitation Of Judicial Application Of The Crime Of Defrauding Loans

It has been 14 years since the crime of defrauding loans,acceptance of bills and financial bills was added in the Amendment of Criminal Law(6)in 2006.There are many problems in the judicial application of the crime.In practice,there are many such cases: the borrower forges material and makes up fiction,to apply for loans to financial institutions such as banks,and the staff of financial institutions(including people in charge and the decision-makers)have faults in reviewing and making decisions on the materials and facts provided by the borrower,and finally make loans.The defenders and appellants generally put forward that the staff of financial institutions have cognitive fault,which will affect the conviction and sentencing of the defendant's crime of swindling loans,but the court mostly rejected this plea with various reasons.The improper handling of such cases by the court has resulted in the expansion of the judicial application of the crime of loan fraud.Based on the above types of cases,this paper discuss the problems existing in the conviction and sentencing of the crime of defrauding loans: first,to what extent does the swindle in the crime of defrauding loans constitute the crime,and whether all the swindles can become the practice of the crime? Second,who are the targets of the swindle of loan,namely,the "bank","bank loan agent",or only limited to "loan decision maker" ?Thirdly,whether the crime of defrauding loans should also conform to the fixed causality structure of fraud crime,whether the crime of defrauding loans can be not accomplished because the cheated object subjectively "knows" ? Finally,whether the fault of the victim(i.e.banks and other financial institutions)will affect the sentencing of the defendant.Based on the existing academic and practical points of view,the author analyzes and discusses the above issues one by one.Under the guidance of the principle of legality,the author reasonably limits the scope of judicial application of the crime of defrauding loans,and gradually constructs a conviction and sentencing model for similar cases.On conviction: First of all,we should consider whether the deceitful behavior of the defendant can constitute the practice of the crime of fraudulently obtaining loans.The practice should have the urgent risk of infringement of legal interests.Therefore,not all the deceitful behaviors can constitute the practice of the crime.The deceitful behavior of the defendant should at least reach the level of "enough to make the deceitful object fall into the wrong understanding and make the loan decision".Secondly,we should limit the deception object of this crime.This crime belongs to the crime of fraud.The deception object of this crime should have the ability of"falling into wrong cognition and making punishment decision";the bank which is separated from the staff has no willpower as an economic machine and cannot be the deception object of this crime;the ordinary bank staff cannot be the deception object of this crime because of no decision-making authorization;only "loan decision-makers for the benefit of the bank" have the consciousness ability and the legally granted decision-making authority for loan granting,and the result of decision-making for the benefit of the bank and within the authority belongs to the bank;therefore,"loan decision-makers for the benefit of the bank" is the object of this crime.Finally,starting from the objective imputation theory,the deceitful object knowingly makes the decision of loan granting when the actor forges the materials and fabricates the facts,which belongs to "self responsibility when agreeing others to cause danger to himself".The loan risk formed cannot belong to the defendant,the fixed causality structure of the crime of deceitful loan is destroyed,and the defendant at least cannot constitute the accomplishment of the crime.In terms of sentencing: The theory of ternary structure mode of criminal law establishes the subject status of the victim in the criminal legal relationship,and provides theoretical support for the view that the fault of the victim affects the sentencing of the defendant.At present,the theory of victim's fault identification is limited to the crime of personal rights,but in fact,the fraud crime belongs to the experimental field of victim's fault theory because of its unique structure(the interaction between the defendant and the victim).This paper further develops the five elements of the existing theory of victim's fault identification to make it adapt to all kinds of interactive crimes,and extracts the important factors that affect the defendant's sentencing-"the degree of connection" and "the degree of fault",and probes into the field of the crime of loan fraud.The fault behavior of the injured bank staff who fails to pay due attention(only refers to negligence and overconfidence)will have an impact on the defendant's sentencing,and through various considerations,it is proposed to determine the range of sentencing impact as 0%-5% of the benchmark punishment.The court's judgment on the conviction and sentencing of the crime of fraudulently obtaining loans involving the fault factors of the victim has many unreasonable points.The neglect of the victim's factors in the typical interactive crimes results in the improper expansion of the judicial scope of application of the crime.Starting with the current situation of the disputes in the judgment of similar cases,this paper makes a theoretical analysis of the disputes,and scientifically reduces the scope of conviction of this crime under the guidance of the principle of legality and the principle of modesty in criminal law;on the basis of the ternary structure model of criminal law,the fault of the injured party is taken into consideration in the sentencing,and the impact range of reasonable sentencing is determined.There are many controversial points in the judicial practice of the crime of defrauding loans.In addition,there is a huge discrepancy between the theoretical point of view and the practical operation of the crime.The academic discussion which based on the status quo of controversy in similar cases is for gaining the unified standard of conviction and sentencing which has a guiding role in judicial practice.Developing the theory on the basis of practice,and guiding the practice with the theory.