Research On The Crime Of Fraud In Trap Loan

Trap loan evolved from usury,but it is completely different from usury.Trap loan is a general term for a series of typical illegal and criminal behaviors.For the purpose of illegal possession and under the guise of private lending,the perpetrators implement such trap behaviors as making the illusion of private lending,maliciously raising the amount of borrowing,claiming debts by various means,which are essentially crimes against property.The creditor-debt relationship between the perpetrators of trap loan and the victims is false and there is no legal relationship in private lending.Claiming debts by various means is not a component of the trap loan,but different means of claiming debts will affect the final conviction and sentencing.The usurers seek high interest and the usury is private lending.After the emergence of a large number of cases of trap loans,the Supreme People’s Court,the Supreme People’s Procuratorate,the Ministry of Public Security and the Ministry of Justice issued 《Opinions on Several Issues Concerning Handling Criminal Cases of Trap Loan》on April 9,2019,which makes it clear that the crime of fraud is the basic crime of trap loans.However,it is wrong that as long as it is a trap loan,it is a crime of fraud.The reason why trap loans commit fraud is that perpetrators raise the amount of borrowing maliciously by breaching intentionally,identifying breach of contract wantonly and other methods to get the victims into misconceptions,which is the core trap of trap loans,namely swindling act.The whole trap loans can be seen as a fraud,which perpetrators implement a series of criminal behaviors under the subjective purpose of intention of fraud.Trap loans can be divided into two stages,the early stage of making the illusion of private lending can be called the trap stage and the claiming debt by various means stage can be called the debt claim stage.Perpetrators obtain false high creditor’s rights to the victims in the trap stage,but it has not yet produced urgent realistic danger to the victims’ property.It is only when the perpetrators ask the victims to pay the false high debt that the victims’ property is truly in urgent realistic danger,which is the commencement of the fraud.After the commencement of the fraud,trap loans commit different crimes according to different behaviors of debt claim.The cognizance of the crime amount should be the amount of the victims’ property actually occupied or wanted to be illegally occupied by the perpetrators,including the inflated debt and the property illegally occupied by the perpetrators in the name of interest,margin and breach deposit.Since the essence of the principal paid by the perpetrators is a criminal tool and is beyond the subjective purpose of illegal possession,the crime is accomplished when the amount paid by the victims exceeds the principal,and attempted otherwise.The amount of the accomplished crime is the amount of the illegal profit of the perpetrators,and the amount of the attempted crime is the unsuccessful part of the amount that the perpetrators wish to illegally occupy,subject to the amount that the perpetrators finally request the victims to pay.As for the loans similar to trap loans,which repayment is normally accepted by creditors who don’t breach intentionally,identify breach of contract wantonly or raise the amount of borrowing maliciously,it is private lending or usury,not crime of fraud.In dealing with the perpetrators of neutral help behavior,we should uphold the principle of modesty in criminal law so that they should not all be alleged to constitute joint crime.People who engage in general service work and receive a fixed wage shall not constitute a joint crime.As for lawyers,technicians and other persons providing neutral help behavior who do not know subjectively that it is a trap loan crime and the neutral help behavior provided does not play a substantial role in helping the implementation of the trap loan,or does not create or raise the risk that the law does not allow,they should not be recognized as a joint crime.