Research On The Judicial Determination Of The Crime Of Loan Fraud

Since the establishment of the ’ Criminal Law Amendment(VI)’,there has been no clear judicial interpretation on how to regulate the application of the crime,which has led to the lack of accurate identification standards for the constituent elements of the crime.Therefore,there is a problem of continuous expansion in the identification of the crime,and the provisions on ’ other serious circumstances ’ in the crime of defrauding loans are also one of the reasons for the expansion of the application.In the ’ Criminal Law Amendment(XI)’,in order to prevent the crime of defrauding loans from becoming a real pocket crime,the problem of ’ other serious circumstances’ of this crime has been solved.However,there are still other problems in judicial determination.There are still different applicable standards in judicial affairs,and similar cases have different judgments.The vitality of the law lies in the implementation of the law,and the authority of the law also lies in the implementation.If we want to have a clear determination of the crime of defrauding loans in judicial application,we must start with specific cases.This article collects and collates a number of cases on the crime of defrauding loans from the Chinese referee documents online.After combing,we found that there are the following problems in judicial determination :First,the object of crime is not clear.For the object of deception,whether financial institutions can be separated from the staff of financial institutions,whether the staff of financial institutions are deceived is equal to that of financial institutions,and whether small loan companies can be the object of crime are controversial in judicial determination.Second,the identification of deception is too formal.It is believed that as long as the applicant provides false materials when applying for a loan,it meets the constitutive requirement of ’ deceptive means ’ and does not grasp the substantive standard.Thirdly,the definition of the crime of defrauding loans ’causing significant losses ’.There is no clear applicable standard for the time node of ’significant loss ’ calculation,the amount of loss,and the loss of the guarantor.The correct theory can guide practice.In order to clarify the judicial determination of the crime of defrauding loans,it is a prerequisite to correctly identify the legal interests protected by the crime.There are different voices in the academic circles on whether the legal interest protected by the crime is ownership or financial order or credit fund security.This paper tends to protect the security of credit funds.For the issue of whether small loan companies are the object of crime,we can not only look at small loan companies in form,but also analyze their formal and substantive standards.Small loan companies should be the object of crime.The fraud of bank staff is equivalent to the fraud of the bank.The two cannot be completely separated,not only limited to managers with decision-making power.For the act of defrauding,it cannot be sanctified.The means of deception should be judged from the form and essence,and the causal relationship between the means of deception and the acquisition of loans should be grasped,so as to correctly identify the practice of the crime of defrauding loans.The criteria for judging the loss of major losses should be based on the time when the investigation organ files the case.The determination of the amount of loss should only calculate the direct economic loss that the perpetrator did not return before the crime,and the loss of the guarantor should not be included in the scope of the crime.This paper not only identifies the crime of defrauding loans from the positive side,but also analyzes the types of restrictions on the crime of defrauding loans from the negative side.For the act of defrauding loans with full guarantees that do not cause losses,the act of defrauding loans that actively return principal and interest before the incident,and the act of financial institution staff knowingly and actively issuing loans can prevent the identification of the crime of defrauding loans.For the purpose of borrowing new and returning old without illegal possession of financial institutions ’ funds,the amount of borrowing new and returning old should not be identified as the amount of fraudulent loans.