Research On The Legal Application Of The Crime Of Defrauding Loans

In order to combat financial crimes,ensure the order of the financial market and the development of the market economy,and also to regulate the behavior of actors in judicial practice that do not have the purpose of illegal possession,but actually defrauded bank loans and infringed on relevant legal interests,my country passed the Criminal Law Amendment in2006 "Case"(6)added the crime of obtaining loans by fraud.Since the establishment of the crime,the crime of obtaining loans by fraud has many problems and difficulties in the application of the law.With the implementation of the "Criminal Law Amendment"(11),the application of "serious circumstances" in the crime of obtaining loans by fraud has been resolved to a certain extent,but there are still other problems and difficulties in judicial practice,and there are still many similar situations in practice.The phenomena leading to different judgments,sorting out and solving the problems in the judicial application of the crime of fraudulently obtaining loans,are important issues that both theory and practice need to face.The life of the law lies in its implementation.To clarify the problems and difficulties in the judicial application of the crime of obtaining loans by fraud,we must start with the analysis of empirical cases.The 2017-2019 crime of fraudulently obtaining loans by the defendant as the condition of the defendant’s innocence defense was searched on the non-litigation website.After sorting out a number of typical court judgments and sorting them out,it was found that the law application of the crime has the following problems: First,the target of the crime The determination is not clear.The scope of the criminal object of this crime is not clearly defined in judicial application.Most courts believe that microfinance companies fall within the scope of “financial institutions” specified in the crime provisions.However,some courts also consider small loans in judicial application.The company is excluded from the scope of this crime;second,there are different standards for determining“defrauding”,that is,whether the “defrauding” in the crime should meet the specific connotation of “defrauding” in the crime of fraud,and whether the victim’s agency personnel are required to fall into error It is recognized that the various courts have inconsistent determinations;third,there are problems in the application of "significant losses".It mainly includes whether there is a real and sufficient guarantee and repayment of principal and interest before the case,whether it is still possible to determine that the perpetrator "caused significant loss" and the specific calculation method of the amount of "significant loss",these are not in judicial practice Clear applicable standards;fourth,due to the absence of judicial interpretations for the crime of fraudulently obtaining loans,the legal norm of“extraordinarily serious circumstances” also has difficulties in judicial application.If there is an effect,there must be a cause.Theoretical knowledge can guide the practical application.The problems and difficulties in judicial application must be controversies in theoretical identification.By summarizing the court reasoning part and theoretical theories of various issues,it is found that the reasons for the difficulty of applying the crime of fraudulent loans are as follows: First,the content of the legal benefits of the crime of fraudulent loans is not clear.Specifically,whether the crime is to protect financial order or fund security,Clarifying the content of the legal interest of the crime protection is the prerequisite for solving the problem of the legal application of the crime;the second is whether the "fraud" stipulated in the crime of fraudulent loan must meet the condition that the perpetrator falls into a misunderstanding required by the crime of fraud.This dispute has led to the application of the law The third is the position of “significant loss” in the determination of the crime of fraudulently obtaining loans,and whether “significant loss” is a constituent element of the crime of fraudulently obtaining loans.This controversy has led to “significant losses”.Application issues.The disputes in these three areas are the main reasons for the problems in the application of the law,which need to be studied and clarified one by one.On the basis of sorting out theoretical controversies and clarifying theoretical viewpoints,it is necessary to put forward specific solutions to the difficulties and problems in judicial application,and put forward reflections on the legal application of the crime.First,with regard to the identification of criminal objects,it is necessary to clarify that the identification of financial institutions must meet the formal and substantive standards,and to exclude current microfinance companies that are not directly supervised by the China Banking Regulatory Commission from the criminal objects;secondly,the criteria for “defrauding” On the one hand,the recognition that bank staff did not fall into a misunderstanding can prevent the determination of this crime,and bank staff are not limited to managers with decision-making power;again,in terms of the definition of “significant losses”,it is clear that there are real,full,and Effective guarantees and pre-incident repayment can prevent the establishment of "significant losses".It is recommended to determine the specific calculation time and specific amount of the amount of "significant losses" in the form of judicial interpretation;finally,it is recommended to use judicial interpretations and guiding cases.The means to clarify the specific content of "other particularly serious circumstances" to supplement the application of the "Criminal Law Amendment"(11).