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Study On Judicial Cognizance Of Objective Aspects Of Fraudulent Loans Crime

Posted on:2020-07-28Degree:MasterType:Thesis
Country:ChinaCandidate:J B LiFull Text:PDF
GTID:2416330623453678Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
With the speedy rise of China's economy and finance,the demand of financing and the scale of loans has expended gradually and the modality of loans has also innovated constantly.Consequently,the loan crime has increased sharply,people obtains loans from bank by fraudulent means,such as fictionalize guarantee,usage of loans or credit qualification,without the motives of illegal possession,leading to serious loss of bank.However,the crime of loan swindling cannot be applied to aforesaid behaviors.Therefore,the Amendment six to the Criminal Law issued the“Fraudulent Loans Crime” in 2006.The stipulation of fraudulent loans crime provides a legal basis for governing the fraudulent behaviors without the motives of illegal possession,and form a strict penal system for combating loan crimes along with the crime of loan swindling.At the same time,the fraudulent loans crime is an independent crime,which is different from the crime of loan swindling,with separate criminal elements and special judicial cognizance,and results in many controversial issues in specific application and new challenges in judicial practice.Based on the judgements in recent years and combining the criminal theory,this article will comb the typical controversial focus in judicial practice and analysis the key components of fraudulent loans crime,to help to apply this crime accurately and unify the standards of judicial recognition.There are three chapters:The first chapter: summarize the typical and controversial deceptive behaviors in judgements,and analyze whether it constitutes a “fraudulent mean” in fraudulent loans crime.According to the provisions,the borrower's performance of fraudulent mean in criminal law constitutes the precondition of being guilt of fraudulent loans crime.Whereas,the standards of fraudulent mean are inconsistent in academic and practical circles,and the judicial practice is also chaotic.Therefore,this chapter will enumerate the typical fraudulent means and take the legal protection standard which is enough to cause serious loss or potential loss as the threshold of sin,and divide the types of fraudulent means into “providing false guarantee materials” and “providing other false materials”.Providing false guarantee materials means the guaranty itself does not have exchange value,i.e.fictionalizing guaranty and setting guarantees repeatedly,providing other false materials means fictionalizing usage of loans for improper operations,fictionalizing financial statements and loan entities.The second chapter: explain the connotation and scope of bank or other financial institutions in this crime,and explore the criminal objects which are much controversial in judicial practice.As far as the criminal object itself is concerned,although the legal nature of the microfinance company is not clearly defined yet,since the microfinance company is engaged in the loan business and is authorized by the banking regulatory authority,it should be recognized as the object of protection for this crime.However,it is illegal for the P2 P platform to engage in loan business,since it can only provide loan intermediary services at now,it should not be recognized as other financial institutions.As for being a criminal object,usually,as long as the borrower performed the fraudulent mean,the financial institution is the victim of this crime,except,when the financial institution staff know and act in the benefit of financial institution.The third chapter: apply “serious loss and other serious consequence” accurately based on theory and judicial practice.At present,the application of serious loss and other serious consequence is unregulated,and the phenomenon of different sentence in same case is severe in judicial practice.Therefore,this chapter will unify the applicable standards from the perspective of the nature,relationship,concept,andlimitations of serious loss and other serious consequence.The relationship of serious loss and other serious consequence is paralleling but selective,both of which are sinful elements,the former is the result element and the latter is the plot element.Serious loss refers to the direct reduction of the principal and interest of loan that the financial institution has suffered at the time of filing.However,if the financial institution fails to realize the collateral right that can be realized,it is the financial institution's own fault and cannot be identified as serious loss,whether there is other serious consequence is remained to discuss.Other serious consequence must be a plot that is quite similar to a serious loss.Common situations include obtain loans by fraud for illegal business operations,unauthorized disposal of collateral,etc.,and fraudulent amounts or multiple fraudulent claims cannot be considered serious consequences.
Keywords/Search Tags:Fraudulent Loans, Fraudulent Means, Financial Institution, Serious Consequence, Judicial Cognizance
PDF Full Text Request
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