| The double fraud of secured loans is a special type of fraud,including the former fraud to obtain a guarantee from a third party and the latter fraud to obtain bank loans.Due to the financial rules of loan guarantees and the civil legal relationship between the two acts,the characterization of the acts is quite controversial,and there is a phenomenon of different judicative result in the same case.Through the analysis of the court’s opinions in judicial precedents,four main controversial issues have been sorted out.The first is the difference between property losses and the identification of victims;the second is the impact of civil liability on the characterization of behavior;the third is the controversy of dual frauds behavior characterization;and the fourth is the inconsistency of the determining standards for crime amount.The legal theory is the basis for the solution of judicial issues,the best solution of which should be found by using professional legal theory.Fraud has always been a hot topic in criminal law circles.Compared with ordinary fraud crimes,double fraud has its particularity.In the theoretical circle,the criminal identification of double fraud of secured loans mainly focuses on the four aspects of property loss,guarantee behavior,contract validity,and the number of crimes.There is a view that for the purpose of illegal possession,the act of obtaining a guarantee by fraud constitutes a crime of contract fraud,and obtaining a loan by fraud,which is a civil fraud,does not constitute a crime;another viewpoint is that for the purpose of illegal possession,the act of obtaining a guarantee by fraud constitutes the crime of contract fraud,and the act of obtaining a loan by fraud constitutes loan fraud.Crime or the crime of fraudulently obtaining loans.The number of crimes of the two crimes constituted by the two previous acts is also controversial: whether the combined punishment of multiple crimes constitutes an implicated offense,and one felony is punished.There are also views that defrauding loans is the purpose,and defrauding loans is the means,which should constitute a crime of loan crime.In the argument path,in addition to the traditional "ultimate damage theory" and "double victimization theory",there are also "guarantee clause theory" and "means purpose theory".Through combing of the theoretical disputes,combing with the existing problems of judicial precedents,starting from the legal provisions of contract fraud and loan crimes,it analyzes whether the two acts meet the constituent elements of the criminal law.For the purpose of illegal possession,whether the perpetrator defrauds the guarantee company or defrauds the natural person to provide guarantee for the loan to the financial institution,the perpetrator deceives the victim to enter into a guarantee contract with him,and uses the signed guarantee contract to defraud the other party’s property interests,which all constitute the crime of contract fraud.It is a civil dispute when the perpetrator does not have the purpose of illegal possession,and the criminal law should not interfere too much.For the latter act of obtaining loans by fraud,starting from the "fraud" and "property loss" of the crime of loan fraud,the third-party guarantee fraudulently obtained by the perpetrator is a real and effective guarantee,and does not belong to the "false guarantee" in the crime of loan fraud.The content of fraud of obtaining loans should take the loan guarantee as the core and consider a variety of factors.Based on the overall property theory,the bank has obtained the equivalent property benefits of the guarantor when issuing loans,so it is not considered that financial institutions suffer property losses and do not constitute a crime.However,if the perpetrator provides the under-guarantee obtained by fraud,resulting in heavy losses to the financial institution,he should be combined punishment both contract fraud and loan crime. |
