The Difficult Problems Of Loan Fraud Crime

Along with the economic development and the rapid social changes,the enterprise especially the domestic micro,small and medium enterprises and individual industrial and commercial households financing demand gradually increased,in view of this,all kinds of financial loan businesses have sprung up,different types,some don’t have loan qualifications of borrowers to get loans,using forged material,such as providing false guarantee way,lead to financial institutions,non-performing assets ratio increased year by year,to better regulate financial order,in the criminal law amendment(6)one of article 175 of the added to defraud loans.On the one hand,the addition of this crime effectively makes up the loopholes in real life that some loan fraud without the purpose of illegal possession can not be effectively regulated;on the other hand,it shows the determination of the state to strictly punish economic and financial crimes.However,the actual application does not accord with the legislative intention,and the number of loan fraud cases increases sharply.Because of its general provisions,the boundary between crime and non-crime,this crime and that crime is gradually blurred.The provision of "other serious circumstances" has been deleted from the Amendment to the Criminal Law(11),which took effect on March 1,2021.However,this paper selected the case of Chen Mou obtaining a loan fraudulously investigated in Chaoyang District of Beijing in 2018,which did not involve the identification of "other serious circumstances" and did not conflict with the changes in the legal adjustment.In addition to the preface,this paper is divided into three chapters:The first chapter briefly introduces the XXL one defrauding loan to basic facts,XXL one USES "coinsurance body loan" loan,this kind of loan is different from the ordinary bank loans,the loan demand data review is relatively loose,the fake is not lending,a necessary material,in such cases,on whether its establishment crime,debated what crime.The case also involves dispute issues such as the identification of joint crime pattern of bank staff participating in crime and the time point of calculating "significant loss",which leads to three difficult problems in the judicial practice of loan fraud crime.First,the dispute of the constituent elements of the crime of loan fraud,which is the key to accurately distinguish the crime of loan fraud from the general loan dispute and the crime of loan fraud;Second: borrower and financial staff collusion,financial institutions staff can fully reflect the will of the financial institutions,staff authority on the establishment of joint crime have those influences.The second chapter,combining Chen’s case with other auxiliary cases and academic viewpoints,analyzes the constitutive elements of the crime of loan fraud,the dispute over the status of the system of "heavy losses and other serious circumstances" and the problems of joint crimes.First implements the behavior of the crime of defrauding loans were analyzed,and summarizes the academic circles about the behavior of four kinds of views,combined with the XXL one case analysis the advantages and disadvantages of four kinds of views,this paper views are obtained,the second is to defraud crime subjective aspects about loan,defraud crime and crime of fraud of the credit loan in the main difference is that whether the borrower has "the purpose of illegal possession",in the loan process often appears the borrower has the mens rea transformation situation,summed up the academic point of view on the mens rea transformation situation discussed separately;Secondly,it analyzes the status of the system of "major loss" in the provisions of the Criminal Law,the dispute about the scope of loss and the calculation of the amount of loss,and the identification of the nature of "other serious circumstances".Whether the will of financial institutions and their staff can be separated leads to the last difficult problem,that is,the problem of joint crime between borrowers and staff of financial institutions.The third part summarizes the court verdict and briefly elucidated,follow the"criminal law amendment(11)changes with the austerity of criminal law thoughts principle the problems reflected through this article case,it puts forward the model of crime of defrauding loans for," significant loss "that put forward to solve problems such as path,in order to contribute to the application for this crime correctly put forward their own views and opinions.