Research On The Judicial Application Of The Crime Of Defrauding Loans

Since the promulgation of the sixth amendment to the criminal law,there have been many controversies on the protection of legal interests and the interpretation of the constitutive elements of the crime of defrauding loans,which directly affect the application effect.Later,the criminal law amendment(11)deleted the standard of "other serious circumstances" in the crime,and made "heavy loss" the only constituent element of the crime of defrauding loans.This directly reduces the scope of application of this crime at the level of basic incrimination,curbs the trend of expanding the application of the crime of defrauding loans,and highlights the problems in the process of judicial application of the constituent element of "heavy loss".It is urgent to clarify the nature of "heavy loss" and define its starting time,scope and amount.This paper sorts out some typical controversial points in China’s judicial practice from the judicial judgments in recent three years,and fully combines with the theory of criminal law to analyze the specific elements of the crime of defrauding loans,in order to help the accurate application of the crime of defrauding loans.This paper is divided into four parts:The first chapter summarizes the different views on the protection of legal interests of the crime of defrauding loans in academic and judicial practice,which can be divided into "institutional interest theory" and "capital security theory".This paper agrees that the protection of legal interest of the crime of defrauding loans should be the security of credit funds of financial institutions.Whether the credit funds are safe or not only focuses on whether it causes actual economic losses.The second chapter: clearly defines the scope of "deception" in the crime of defrauding loans,and analyzes the essential elements of "deception".When the actor’s deception is enough to cause the risk of financial institutions’ credit fund security,and the actor has the possibility to recognize this kind of criminal risk,it can be considered that the deception creates the "danger" which is not allowed by the criminal law,and meets the requirements of constitutive elements of this crime and causality,it can be considered as the "deception means" of this crime.Chapter three: according to the essential meaning of financial institutions,combined with the relevant laws and regulations,it is concluded that small loan companies belong to "other financial institutions".Whether the P2 P network lending platform belongs to "other financial institutions" should be considered from the function of the lending platform itself and the main body of the source of funds.Chapter four: This paper summarizes four views on the nature of "heavy loss",which are: not only the result of constitutive requirements,but also the result of accomplishment,objective punishment conditions,objective exceeding factors,and harmful consequences in the criminal plot.After analyzing the above viewpoints according to the current law and the theory of constitutive requirements,the conclusion is that the heavy loss belongs to the result of constitutive requirements,but not to the accomplished result.In terms of the starting time,scope and amount of loss,this paper considers the starting time as the case filing;“ The major loss is the direct economic loss,but some indirect economic losses are the necessary expenses to recover the losses,and the guarantor’s losses are not included in the "major losses" because they do not constitute the victim of the crime of defrauding loans;The amount of heavy losses can be determined as more than 20 to 1 million yuan by referring to the provisions of the crime of illegally granting loans and the standard of prosecution(2).