Study On The Illegal Elements Of The Crime Of Illegally Issuing Loans

Through combing,this paper finds that there are still many disputes on the illegal elements of the crime of illegal loan issuance in practice,and it is common to see different sentences in the same case.However,the academic community has not reached a consensus on relevant issues,and some issues are even rarely discussed.In order to solve the above problems and provide useful reference for judicial practice,this paper will conduct an in-depth discussion on the related disputes about the illegal requirements of the crime of illegal loan issuance,in order to seek a more reasonable solution.This paper is divided into three parts,the contents are as follows:Part One: Judicial status and theoretical disputes.This paper summarizes the disputes about the crime of illegal loan issuance in theory and practice.First,whether the specific meaning of "national regulations" can be extended to departmental regulations,local normative documents or even industrial regulations.Second,the meaning of "release".The problem is discussed from two aspects.First,whether "issuance" only refers to the narrow sense of loan issuance behavior,or includes loan investigation and loan approval behavior;Second,whether to restrict the behavior of "issuing",this aspect of the dispute is mainly reflected in the dispute between the crime of illegal loan issuance and the crime of misappropriation of funds.Third,whether the fictitious purpose of the loan constitutes the crime of illegal loan issuance.Fourth,how the losses are calculated.Fifth,the relationship with the constitutive elements of his crime.This paper mainly discusses the relationship between the crime of loan fraud and the crime of loan fraud.The second part: the construction of a two-layer legal interest system,the barrier layer legal interest and the back layer legal interest,the two are the relationship between means and ends.Barrier layer legal interest is collective legal interest,as a means,its specific content is the state’s macro-control of finance.From the perspective of finance,this paper finds that the establishment of credit system is actually based on the state’s macro-control of financial institutions.Therefore,it is more reasonable to define the law benefit of the crime blocking layer as the state’s macro-control of finance.The underlying legal interest is personal legal interest.For purposes,its specific content is the borrower’s right to equal access to loans.In order to limit the punishment scope of this crime and realize the function of criticizing legislation,collective legal interest should be further restored to individual legal interest.Since lending is the exercise of the power of allocation of capital resources,financial institutions are required to treat each borrower equally when lending.Therefore,the legal interest behind the crime of illegal loan issuance should be the borrower’s right to equal access to loans.Part three: the meaning of "State regulations" and "granting loans".This part has three sections.Section I deals with the meaning of "State provisions".From the perspective of legal punishment,it is certainly impossible to break through the scope of national provisions of Article 96 of Criminal Law to expand,but in order to provide relatively clear basis for judges to judge cases,if the departmental rules,local government rules,departmental normative documents,local regulations,local normative documents,industrial provisions are the elaboration of laws and administrative regulations,If it does not violate laws and administrative regulations,it can be used as the basis for whether the illegal loan issuance violates state regulations.However,the expansion of the basis for determining the illegality of the crime of illegal lending has the risk of generalization,so it must be strictly restricted.There are two main ways to restrict it: first,the use of the legislative criticism function of the individual legal interest behind the law to exclude the application of the unprotected interest norm;Secondly,the applicable norms must be the refinement of laws and administrative regulations,and other additional norms cannot be used as the basis for the identification of illegality.Section 2 discusses the meaning of "issue".First,from the perspective of credit process,the meaning of "issue" is restricted.The purpose of this crime is to curb the occurrence of internal fraud in operational risks and ensure the effective implementation of national macro-financial control measures.If the meaning of "issuance" is limited to the issuance of loans,or according to Huang Xiaofei’s point of view,"issuance" is limited to the behavior of approving loans,and the irregularities in the loan investigation and loan issuance stage are excluded from the "issuance",it will lead to improper prevention of internal fraud.Therefore,the meaning of "issuing" should be expanded to include loan investigation,loan approval and loan issuing behavior.Second,starting from the behavior mode of lending,whether to restrict the behavior mode of "issuance",this debate is mainly reflected in the discussion of the relationship between the crime of illegal loan issuance and the crime of misappropriation of funds.In order to avoid the situation that there is no substantial basis for restricting the two crimes in theory and practice,this paper insists on the theory of imaginary conjunctive cooperation and makes a substantial interpretation of the requirement of "taking advantage of position convenience" among the illegal elements of the crime of embezzling funds."Taking advantage of position convenience" can only be enjoyed by the staff of financial institutions with the disposal power,that is,the subject with the loan approval power,while other staff in the loan process do not have the position convenience of being in charge of,managing and handling unit funds,so it cannot constitute the crime of misappropriation of funds.Therefore,in the case of illegal loan issuance,the staff of financial institutions with the right of examination and approval constitute the crime of misappropriation of funds and the crime of illegal loan issuance,imagine competition and cooperation,choose a heavy punishment,the crime of misappropriation of funds;Other personnel constitute the crime of illegally granting loans.In this way,on the one hand,we can get rid of the opposing thinking of existing views and no longer make unreasonable restrictions on the behavior of "issuing" in the crime of illegal lending.On the other hand,it also conforms to the practice that the illegal loan approval behavior is more illegal and is punished more severely by the department.Section 3 discusses the other requirements.The main is whether the loss calculation standard and only fictitious loan use constitute this crime.This paper mainly discusses two aspects of loss calculation standard: first,the base time of loss calculation.This paper argues that the calculation of losses should be based on the amount of loans that cannot be collected when overdue.Second,how to calculate the amount of the new loan to repay the old loan.At this time,two situations are discussed: In the first case,the behavior of issuing old loans is legal,while the behavior of issuing new loans is illegal.At this time,when the overdue amount of the new loan is more than 200,000 yuan,it belongs to the loss of this crime,constituting the crime of illegal loan issuance.In the second case,when the loan is repaid,the two loan issuance behaviors are illegal,and the amount should be calculated cumulatively.The act of illegally issuing loans only for fictitious purposes of loans still constitutes the crime of illegally issuing loans,because the fictitious purposes of loans will also damage the crime to prevent the government from protecting the macro-control of finance.There are three innovations in this paper: first,material innovation.This paper downloaded a total of 1218 cases of the crime of illegal loan issuance from Jufa case network,and sorted out the cases with conflicting understanding of the illegal elements of the crime of illegal loan issuance as the starting point of this discussion.Secondly,research method innovation.This paper adopts the method of empirical research to make a regression of the illegal loan approval,illegal loan investigation behavior and sentence,and finds that in practice,the sentence of illegal loan approval behavior is significantly higher than that of illegal loan investigation behavior.Finally,viewpoint innovation.As for the law interests of the crime of illegally issuing loans,this paper first puts forward the viewpoint of double legal interests;For the first time,this paper discusses the meaning of "issuing" from the perspective of loan process and behavior mode.