The Crime Of Obtaining Loans By Fraud From The Perspective Of Loan Security

According to Article 175 of China's Criminal Law,if a bank or other financial institution obtains a loan,bill acceptance,letter of credit,letter of guarantee,etc.by deception,which causes major losses to the bank or other financial institution or has other serious circumstances,it shall be punished by a term of less than three years Imprisonment or detention,and a fine or a single fine.However,in judicial practice,there is a large divergence in the scope of application of the crime of fraudulent loans,and the application of confusion in judicial practice is chaotic.In some areas,special regulations have also been issued for the crime of fraudulent loans,aiming to achieve a unified standard for the crime of fraudulent loans in the region.By sorting out the cases of fraudulent loans published on the Internet nationwide in recent years,the author analyzed the regional and time distribution of fraudulent loans,and found that in recent years,the fraudulent fraudulent cases have shown explosive growth,and the regional distribution is extremely unbalanced,violating economic crimes.Case law.The differences between the prosecution and trial sides in the determination of the crime of fraudulent loans were analyzed in combination with individual cases.It was found that under the same fact,all parties had different understandings of the "deceptive means","caused significant losses" and "other serious circumstances" in this crime.To argue endlessly between sin and non-sin.The reason why the crime of defrauding loans is confusing in judicial practice and there are many controversies is because of the misunderstanding of the legal benefits infringed by the crime of defrauding loans.The traditional view is that the legal benefit of the crime of defrauding loans is the financial management order or financial transaction order,that is,the financial order.But this view has its inherent flaws in achieving the purpose and certainty of criminal law.Taking the general concept of "order" as legal benefit has caused too much damage to loan lenders in practice,unclear application boundaries and unclear requirements,and undermines the stability of the law.Many people have begun to re-understand and reflect on the legal interests infringed by this crime,and have gradually defined the legal interests infringed on this crime as loan security.They believe that behavior can only constitute a crime of fraudulent loan if it causes a substantial and significant danger to the loan security.In this article,the legal benefits of the crime of defrauding loans are understood as loan security,and the guarantee of loan security is the ultimate goal of establishing this crime.The rationality of this view is demonstrated by analyzing the design of the financial system,market laws,the implementation of criminal law,and the trend of financial criminal legislation.From the perspective of loan security,we re-examine the crime of defrauding,and believe that only deceptive means that constitute a substantial and significant risk to loan security can be evaluated as "deceptive means" in the constituent elements of the crime.The analysis of the incrimination and guilt of the "deceptive means" in "the fraudulent loan under the condition of real guarantee";and when determining the loss of financial institutions,the causal relationship between loss and behavior should be considered from the perspective of loan security,and The criminal law encourages repayment of loans,and studies the procedural requirements,time points,and guarantee factors of financial institution loss determination in detail,with a view to reasonably identifying financial institution losses,and tolerates the fault of the actor to a greater extent;"Circumstances" should be equivalent to the dangers caused by loan security and cause significant losses.The overall review should check whether the social harm of their behavior has reached the level of punishable punishment,and can not understand one-sidedly and in isolation the provisions of the Criminal Law "Other serious episodes."...