On The Criminalization Criteria For The Crime Of Defrauding Loans

"Criminal Law Amendment(6)" added the crime of obtaining loans by fraud,originally to make up for the loopholes in the punishment of the crime of loan fraud,but since the addition of this crime,judicial practice has always shown a tendency to improperly expand the application of this crime.,"Criminal Law Amendment(11)" has also revised the incriminating standard of this crime,deleting the "or there are other serious circumstances deleted" provision,and only retaining the single incriminating standard of causing major losses in the first half of the crime.In order to more accurately grasp the incriminating standard of this crime,this article discusses the legislative evolution of the crime of obtaining loans by fraud,the existing problems in the incriminating standard,the determination of the protection of legal interests and the application of the interpretation function,the determination of major losses,and some aspects the standard of guilt have launched an in-depth discussion on the standard of guilt.The first part of this article is related to the legislative evolution of the crime of obtaining loans by fraud.Through the relevant provisions of this crime in different historical periods,and combining the "Criminal Law Amendment(6)" and "Criminal Law Amendment(11)" to the establishment of the criminal standard and the background of the amendment,it was found that although the legislator was convicted of this crime The crime standard has been revised,but in fact there are still many difficult problems in the crime standard that need to be solved urgently,which will pave the way for the discussion of the crime standard below.The second part of this article mainly combines practical cases to get the existing problems of the standard of incriminating the crime in practice.Specifically,it is mainly reflected in the following four aspects.The first is whether the conviction of this crime must cause actual losses to the bank.Within this issue,there is a confrontation between "not guilty of causing actual loss" and "not guilty of causing actual loss".The second is that the results of the same referee are based on different referees.It is manifested in two levels: first,the application relationship between major losses and other serious circumstances is misplaced;second,the identification standards for particularly serious losses or other particularly serious circumstances are confused.The third is to ignore the difference in the "degree" of lawlessness between deception and other serious circumstances.Fourth,it failed to follow the normative structure of deceptive crimes when understanding deception.The third and fourth parts of this article mainly take on the problems in the second part,and found that the root causes behind the common problems in judicial practice mentioned above are mainly two: First,the definition of legal interests to be protected by this crime is not clear.Second,the basic structure of this crime and its system status in the theory of crime cannot be reasonably grasped.Therefore,the third part analyzes the many controversies existing in the protection of legal interests of this crime,and concludes that the security of bank credit funds is the legal interests to be protected.After clarifying its legal interests,it will play the guiding function of legal interests in the interpretation of deceptive means of the elements of this crime.When understanding deceptive means,we should follow the normative structure of deceptive crimes.From the perspective of substantive interpretation,we should focus on whether the deceptive means will cause the risk of bank credit funds.The system can be explained by referring to the provisions of the crime of loan fraud.The fourth part focuses on the basic structure of this crime and its system positioning.It is concluded that the basic structure of this crime should belong to the consequent crime,and the major loss should belong to the criminal constitutive element in the system positioning,rather than the objective punishment condition..In addition,when determining the amount of major losses,it should be calculated based on the time when the public security organs filed the case;the losses of the guarantor should not be included in the scope of losses of other financial institutions.The fifth part of this article proposes a perfect conception of the criminal standard of the crime of obtaining loans by fraud.In view of the serious formal thinking in the understanding of the constitutive elements of this crime in practice,this article believes that the understanding of the standard of incrimination of this crime should adhere to the position of substantive interpretation first;at the same time,it addresses the misunderstanding that the standard of prosecution is equal to the standard of incriminating in practice.Refute.By drawing on the principles of risk creation and realization of the objective imputation theory,a systematic review mechanism can be constructed from these two stages for the incriminating criteria of this crime;in addition,the crime of illegally granting loans can be referred to regarding particularly heavy losses.The determination standard is to unify the applicable standards of the statutory penalty promotion conditions for this crime as soon as possible,so as to avoid the embarrassing situation where the same kind of judgment results are based on completely different judgments.