The Study On The Objective Elements Of The Crime Of Loan Fraud

Finance is the "barometer" of the operation state of market economy.The emerging financial innovation tools not only promote the development of market economy,but also lead to the rampant financial crimes.For this reason,"criminal law amendment(vi)" newly established one of the 175 "cheating loans,acceptance of bills,financial bills crime." This crime belongs to the selective crime in the classification.This paper chooses the crime of loan fraud as the research object.On the other hand,although there is a strong call to strictly limit the scope of the offense,all kinds of arguments about the limitation of the offense may not be reasonable.Adhere to the guiding principle of the criminal law protection of profit as the explanation,focus on crimes described,using the empirical analysis and normative analysis and case analysis,the criminal law article 175,defrauding loan,one of the objective elements(1)deception(2)the behavior object(3)"significant losses or other serious circumstances" analysis,and response to the objective elements of crime in the judicial application issues,to find the right path regulation.Apart from the introduction and conclusion,this paper consists of three parts.The first part,the determination of deception.To explain the construction requirements of this crime,it is necessary to take the interest of the protection law as the starting point.The current legislative system of economic criminal law is limited to the "view of the interest of the order" and ignores the interests of financial transactions.This crime takes the loan allocation benefit as the interest of the protection law,the fraudulent loanbehavior will cause the loan security risk,harm the loan's own benefit and loan's external benefit.Secondly,this crime and the crime of loan fraud as a low crime and high crime relationship,behavior is necessary to refer to the fraud of the crime of loan fraud.The essential definition of the deception means of this crime is the key fact that the financial institution lends money and causes improper risks,which is manifested as the deception in three aspects or one of the three aspects: the main body of the loan,the purpose of the loan and the ability to repay the loan.Finally,this crime should follow the logic of fraud crimes,and emphasize the causal relationship of financial institutions issuing loans based on the wrong understanding of the perpetrator's deception.In practice,the difference between "victim" and "victim of fraud" is that the target of deception can only be the loan decision makers of Banks and other financial institutions."self-approval,self-loan",bribery and other loan decision makers know the situation,but the establishment of causality is prevented.The second part,"the bank or other financial institutions loans" identification.In the face of the emergence of new financial instruments and new financial organizations,the criminal law evaluation should follow the principles of substantive interpretation and systematic interpretation.Loan wants to grasp from capital source and loan relation two respects.Identify the fund source of the entrusted loan,and the loan that is not from a financial institution should not be identified as the loan of this crime;As for the business of faking receivables to defraud factoring financing and taking credit card as the carrier,it should be included into the regulation scope of this crime on the basis of grasping the essence of its behavior.Secondly,micro-loan companies cannot be identified as "other financial institutions" according to their quasi-financial institution nature in administrative law.However,small loan companies are essentially engaged in financial business and have been incorporated into China's financial regulatory system.The relationship between the staff of grassroots autonomous organizations and the staff of state organs can be regarded as "other financial institutions" by legislative interpretation.The third part is the determination of "heavy loss" and "other serious circumstances".The behavior result of this crime is to obtain loan,but needto have "heavy loss" or "other serious circumstances" to start the penalty right,reflect the criminal law safeguard.First of all,the criminal law evaluation of the guarantee takes the establishment of the security right as the core,rather than the actual repayment of the guarantor,so as to avoid the "other serious circumstances" caused by the "amount only theory".The amount of loss is direct economic loss,not included in the interest and penalty interest,take the filing time as the loss calculation node and require financial institutions to exhaust the means of relief.The judicial judgment should refer to the "standard of recourse(ii)",the amount of cheating 1million can be further discussed after the increase;To "borrow new return old" type case,frequency and amount cannot sum simply,from the essence grasps on legal interest infringement.