The Study On The Objective Elements Of The Crime Of Fraudulent Loans

Since the establishment of the crime of fraudulent loans,the judicial application rate was once so high that it even tended to be reduced to a "pocket crime".As society became more concerned about this trend,the offence of obtaining a loan by deception was gradually restricted in judicial practice,and was eventually amended by Amendment(XI)to the Criminal Law of the People’s Republic of China,which deleted the words "or other serious circumstances" and raised the threshold for the establishment of the offence.However,the amendment to the offence of obtaining a loan by deception does not solve all the problems at root,and the phenomenon of the expansion of the application of this offence has not been completely eliminated.By sorting out and comparing typical cases,we can see that the main reason for the expansion of the crime of obtaining loans by deception lies in the unclear identification of the objective elements,specifically the confusion in the identification of the act of implementation,the unclear definition of the object of the act and the vague standard of harmful results.However,at the root of the problem,the identification of these objective elements stems from the unclear positioning of the legal benefits of this crime.The crime of fraudulent loans takes the security of credit funds as the legal interest.The traditional view of the financial management order as the legal interest of the crime of obtaining loans cannot effectively guide the determination of the constituent elements of the crime,easily leading to the expansion of the application of the crime,while under the guidance of the legal interest of the security of funds,the objective elements of the crime can be limited.In terms of the act of commission,the act of commission of the crime of fraudulent loans should be consistent with the content of what is concealed being sufficient to infringe the legal interest of the security of funds.Therefore,for loans with guarantees,the possibility of the realization of the guarantee should be fully considered: for those that can compensate for the loss of funds through the realization of the guarantee,the act of committing this crime should not be recognized.For loans without real and full guarantees,where there are fictitious loan purposes and loan qualifications,the difference between the false content and the real situation should be measured to be sufficient to affect the decision to grant the loan and the safety of funds.In terms of the object of the act,the object of the crime of fraudulent loans is the financial institution.When the staff of the financial institution intentionally issues a loan in order to safeguard the interests of the institution,knowing that there is deceptive content,their will can represent the will of the institution and block the establishment of this crime.At the same time,because the form of establishment,supervision mode and business content of microfinance companies are in line with the relevant characteristics of financial institutions,they can be included in the scope of "other financial institutions" in the crime of fraudulent loans,i.e.the act of obtaining loans from microfinance companies can constitute this crime.In terms of the harmful results,"loss" refers to direct economic loss,excluding indirect losses such as interest;for the "particularly significant loss" in the upgrading conditions of the statutory penalty,the multiplier calculation method commonly used in criminal law can be used,referring to the close connection with the crime of fraudulent loans taking.For the "particularly aggravating circumstances",it should be carefully determined by taking into account the legal benefits of the crime and the principle of homogeneous interpretation.