Fraudulent Loans Crime Judicial Cognizance Problems Explored

With the economic development and social progress, both companies and the public are being strong financing needs. For companies, in order to expand production, improve the technology so as to earn huge profits, the attempted through Banks and other financial institutions to obtain funding. For the social public, in order to maintain a normal life or improve their quality of life, tried to obtain loans by financial institutions to meet consumer demand.In view of this, the lending practices of financial institutions "in full". Although lending profits is the main profit way to Banks and other financial institutions, but in real life by making up the loan of the borrower is not in conformity with the terms of the loan qualification, fictional loan application or providing false pawn of defrauding loans phenomenon common occurance, lead to financial institutions, which cause serious damage to the financial order and financial institutions capital is safe. In the face of such situation, the criminal law amendment(6) clear after article 175 of criminal law will add one of article 175 of the cheating loan fraud behavior into the scope of criminal strike. Should see, cheating loan to set up, on the one hand plugging effect, the impact on the financial fraud penalties for cannot prove that has the purpose of illegal possession of loan fraud behavior or not has the purpose of illegal possession, but for financial institutions to cause significant loss or serious circumstances behavior to circumvent the loopholes; On the other hand reveals strict criminal laws, strictly punish the criminal policy of financial crime. Admittedly, judicial status and the legislative intent of the preceding this crime, not only failed to reduce loan fraud case in instead. Based on the judicial referee as the starting point, this paper observes the fraud case characteristics, both the causes of sorting out the judicial problems, combining with the components of the criminal law theory analytical defrauding loan to try to deal with real problems, accurate properly handle loan fraud case for judicial practice.This paper is divided into the following three chapters except the introduction:The first chapter: the judicial referee as foothold, from the characteristics of defrauding loan case, both the causes and the problems faced in the judicial application three levels show of loan to the judicial status quo. In terms of defrauding loans case characteristics, mainly from the macro and micro two dimensions interpreted, specific displays in: the macro level, the regional crime is wide but in east China rate is significantly higher than other regions; Micro level, deception presented typed tendency, upgrade the standard of legal punishment is arbitrary. At cause of a swindle loans case, borrowers strong financing needs and the lender failed to credit management process and the related staff of supervision is the main reason of frequent cases. In terms of real problems existing in the judicial application, especially for the following four contents: first, the judicial practice "brokers" funds should be brought into the regulatory scope questionable; Second, "great losses or other serious circumstances" have different standards, such as major loss amount of computing time, losses and serious circumstances specific situation has not yet formed a unified understanding; Has not been the third, both in criminal law and judicial interpretation of "special heavy losses or other especially serious circumstances" make that clear, lead to the absence of standards; Fourth, the judicial practice blindly will loan fraud behavior into the scope, then the fuzzy line between this crime and loan disputes.The second chapter: supported by criminal law theory, analytic defraud loans the constitutive requirements of sin. Combining the theory of criminal law and academic point of view, by means of criminal law interpretation accurately identified what is cheating, heavy losses or other serious circumstances of the specific situation, and other financial institutions. First of all, and determination of "deception". Both academic circle and judicial practice has yet to clarify what is meant by deception, this article adopts the system of crimes under the principles of criminal law interpretation contact law and front legislation on loans will be "deception" explanation for the borrower’s credit status, purpose and to repay the loan ability three aspects of the implementation of fictional fake behavior. Second, about the cognizance of "great losses or other serious circumstances". Combining with the judicial cognizance, "significant loss" refers to the direct economic loss caused to financial institutions, the scope is due to return the loan principal, the loss caused by the public security organ shall initiate an investigation when the amount that is more appropriate for direct economic loss. "Other serious circumstances" and "significant loss" belongs to the parallel relationship, according to the rules of same kind of explanation, both has the homogeneity. In other words, the social harmfulness is quite. At the same time, the establishment of this crime is aimed at maintaining financial institutions capital safety and management order, therefore, to crack down on crime is to the economic losses caused by financial institutions loan fraud behavior. In view of this, the "other serious circumstances" as the risk of financial institutions capital safety faces a major loss is proper. At the same time, due to "special heavy losses or other especially serious circumstances" of the absence of standards, reference to other financial status crime legal punishment of the applicable standards, design upgrade the legal punishment of this crime. Finally, the determination of "other financial institutions". Generally, financial crime belongs to the legal, its behavior is in violation of the norms also violate the criminal law, therefore should uphold the system interpretation front legislation about the nature of the financial institutions, the scope of regulation to determine the range of this crime other financial institutions.The third chapter: to defraud loans as a starting point, the rational response to the expansion of financial crime situation in our country. This chapter from the response to the problems facing the judicial practice, with the expansion situation representation of financial crime, the expansion of financial crime situation shall uphold the position of the three aspects. First of all, to clarify the line between this crime and loan disputes, the crime of fraud of the loan. Should accurately grasp the "general" about the borrower’s rights and obligations, the legal liability of the specification, it is clear to defraud loans crime and boundary disputes the key. Whether has the purpose of illegal possession is the difference between this crime and the nature of the crime of fraud of the loan. Secondly, based on all previous criminal law amendment, combing inductive expansion trend of financial crime present situation in our country. Can be summarized as follows: first, to establish a new charges to expanding the scope of the criminal strike; Second, modify the crime constitution in order to reduce the threshold into sin; Third, if the circumstances are serious, general rules lead to the judicial discretion space is too large. Finally, in the face of strictly punish the criminal policy of financial crime, should be properly handle the relationship between financial freedom and financial order. In fact, through the legislative background of defrauding loan and judicial status quo is not hard to find, and safeguard the financial order and financial institutions this crime capital safety, the generalized financial crime, essentially reveals the tension between financial freedom and financial order. Combining with the judicial practice, should uphold the austerity of criminal law, civil and administrative legal norms regulating function into full play, strengthening the internal control system construction, strengthen civil, administrative, and inhibit the crime of financial expansion, the future trend.