Study On The Judicial Determination Of The Element Of“the Intention Of Illegal Possession”in The Crime Of“Routine Loan”Fraud ——An Empirical Analysis Based On 810 Judicial Documents

Since the launch of the special campaign to eliminate criminal syndicates and evils,we have always maintained a high-pressure situation of cracking down on the illegal and criminal activities of "routine loan".In 2019,Supreme People’s court,Supreme People’s Procuratorate,Ministry of public security and Ministry of Justice printed and distributed the opinion on handling criminal cases of "routine loan"（hereinafter referred to as opinion on "routine loan"）.This opinion defines "routine loan" as a general title with the element of " the intention of illegal possession",and takes the element of "the intention of illegal possession" as the key to distinguish "routine loan" from private loan.According to the data statistics based on China judicial document network,the cases have shown an explosive growth,especially when it is recognized as the crime of fraud,which is more than 89%.Through the empirical research on the crime of "routine loan" fraud,it is found that in the process of identifying the element of "the intention of illegal possession",the referee has the problem of identifying a single objective "routine" behavior as the element of "the intention of illegal possession",and it is difficult to rule out reasonable doubt in the one-way presumption of the element "the intention of illegal possession" in the process of determination,the defendant and his defender fell into the misunderstanding of " borrower knows" but blocked the determination of the element of "the intention of illegal possession",and the defense and trial parties did not pay enough attention to the important role of the establishment time point of the element of "the intention of illegal possession".Through analysis,the reasons for the problems are not only the lack of clear and specific determination basis,but the determination method of ordinary fraud can not be fully applicable,the determination method of special fraud can not be directly applied.In order to find a perfect path,first of all,adhere to the principle of unity of subjectivity and objectivity,build a two-tier evaluation system,and uniformly identify the element of "the intention of illegal possession".Afterwards,adhere to the principle of simultaneous existence of behavior and responsibility,and pay attention to the determination of the establishment time point of the element of "the intention of illegal possession","acquisition behavior" should be selected as the reference point for judgment.In the next part,implement the rule of allowing counter evidence to eliminate reasonable doubts about the determination conclusion of the element of "the intention of illegal possession".In the end,to clarify the element of "borrower knowing" and "the intention of illegal possession","borrower knowing" cannot replace the determination of "the intention of illegal possession",both of them play different functions in the determination of "routine loan" type fraud and should be considered at the same time.The crime of "routine loan" should be fought not only hard,but also accurately.Entering the normalization stage of eliminating criminal syndicates and evils,as a key period connecting the preceding and the following,we embark on a new road to catch up with the examination.According to the theory of crime constitution,clarify the determination rules,methods and basis of the element of "the intention of illegal possession" in the case of "routine loan" fraud.It helps to distinguish the boundary between criminal and civil,ensures the unity of judicial judgment,improves the efficiency of comprehensive law enforcement and maintains social order and stability.