Research On Difficult Issues Concerning The Crime Of Defrauding Loans Under The Tempering Criminal Policy

The crime of defrauding loans has not played its due role in preventing and cracking down on crimes since it was added by Criminal Law Amendment VI in 2006.At present,in the process of judicial application of this crime,the phenomena of leniency,severity,different leniency and different judgments in the same case are more frequent.To a certain extent,this makes the behavior of obtaining loan by cheating overflow,and the establishment of this crime is useless.For the purposes of maintaining the order of credit transactions and protecting the safety of credit funds as well as safeguarding the normal operation and development of private enterprises,the guidance of the criminal policy of properly combining leniency with severity shall be strengthened in the judicial application of this crime,and the legal protection interests and constituent elements of this crime shall be further clarified to ensure that the conviction and sentencing are strict,reasonable,lenient and appropriate.The main content of this study is to outline the process and motivation for the legislation of the crime of loan fraud,summarize and analyze the judicial status quo and reasons for the crime of loan fraud,and further demonstrate the feasibility,necessity and specific way of implementing the criminal policy of properly combining leniency with severity applied to the crime of loan fraud.On this basis,from the perspective of the criminal justice policy of properly combining leniency with severity,the difficulties in the judicial identification of the crime of loan fraud shall be studied.Chapter one: The legislative origin and judicial status of the crime of defrauding loans.The Amendment VI to the Criminal Law adds the crime of defrauding loans,which is to maintain the order of market economy,strictly prevent and control the financial crimes and effectively curb the financial fraud in its infancy.At present,the crime situation in the current high trend,especially in the eastern region is the most serious,of which private enterprises account for a higher proportion,more ways of defrauding loans,defrauding loans amount and business scale is positively related.Crime situation is more intense,but in the judicial status quo,but there have been judicial organs in the judicial application of the relevant elements of this crime ambiguous understanding,and the overall severity of leniency and severity.Chapter two: Intervention of the Criminal Policy of Properly Combining Leniency with Severity in the Judicial Identification of the Crime of Defrauding Loans.In theory,on the one hand,there is no theoretical obstacle for the intervention of criminal policy in judicial activities.On the other hand,the criminal policy of combining punishment with leniency is consistent with the crime of defrauding loans.In practice,China has entered the stage of building a well-off society in an all-round way.To implement the criminal policy of combining leniency with severity in the application of this crime is of great practical significance for stabilizing economic and social development.The criminal policy of combining punishment with leniency can adjust the judicial activities of this crime,and it should be realized through purposeful interpretation.This crime also leaves some applicable space for purposeful interpretation in the expression of legal provisions.The crime is legally beneficial to the safety of bank credit funds and shall be interpreted for the purpose of the crime.Chapter three: Identification and Analysis of "Fraud" This article first further details the policy value to be achieved when identifying the act of "defrauding".And then the analysis and interpretation on the "cheating" element shall be made within the scope of possible literal meaning.Believing that cheating and obtaining are the indispensable elements of the crime in respect of status.In terms of connotation,fraud and obtaining shall have a causal relationship,cheating matters shall have substance,and cheaters shall be the employees of financial institutions who engage in specific business.The Draft for Comment also puts forward specific applicable circumstances of "leniency" and "severity".Chapter Four: Identification and analysis of "heavy losses or other serious circumstances".First of all,this paper further details the policy value that should be achieved in the determination of "heavy losses or other serious circumstances".On the basis of this,the author analyzes and explains the "major loss or other serious circumstances" within the scope of possible literal meaning.In the position,it belongs to the constituent elements.In the connotation,"the heavy loss" refers to the bank and so on financial institution credit fund damage risk.The understanding of "other serious circumstances" should follow the principle of the same kind.And the corresponding "leniency" and "severity" of the specific application of the situation.