The Study On Criminal Responsibility Of "Both Ends Fraud" In Secured Loan

In order to effectively limit “the risk exposure” in the field of credit business,commercial banks generally adhere to the guidelines that strictly control credit loans,and actively promote secured loans.To "guarantee" the risk of debt,the security system can enrich the ways to realize creditor's right so that it can protect the credit assets of commercial bank,also can ease the tension between property safety and property efficiency to a great extent.At the same time,taking secured loans as "target",a new combined process of crime derived from the crime of financial fraud: the borrower firstly defraud a huge amount of property from a third party,then with fake proof of ownership and other forms to get commercial bank loans by securing the fraud property;or the borrower firstly cheat a third party to get guarantee,so as to with this guarantee defraud commercial bank loans.In this case,both a third party and creditor get into a hoax of loan the borrower design.Therefore,criminal judicial department concludes it as "Both ends fraud".Among the“Both ends fraud” loan cases,borrowers,lenders,and the third party form a perplexing multi-party legal relationship based on loans,which is beyond the range of the simple contract fraud,loan fraud and so in which only regulating the simply act of crime.In addition,in practice,the strong involvement of commercial banks in the realization of secure right,makes the direct results against the damage of the legal interests flow from commercial bank to the third party under the disguise of the "legitimacy" of bank's secure right,deepening the challenges in the ascertainment of criminal liability.In the current criminal law theory,qualitative study of the “Both ends fraud” is very rare;some typical criminal cases of "Exploring Method" seen on newspapers,establish the related standard concisely and to the point in a way of essence judgment,but they are quite different from each other.Thus,the judicial justice in "Both ends fraud" loan cases is facing the plight of "anomie".This paper,focuses on exploring feasible ways to solve this plight and discuss the following contents:The first chapter elaborates the basic situation of the “both ends fraud”secured loan cases.This part firstly summarizes the definition of the “Both ends fraud” secured loan cases,and then by enumerating arrays of types and examples,explains the extension range of “Both ends fraud” secured loan cases,and epitomizes the typical characteristics of the “Both ends fraud”secured loan cases,circling the boarders of the study in this paper.The second chapter reviews systematically the criminal judgment of the“Both ends fraud” secured loan cases.The author takes the criminal typical case seen on newspapers as samples,through the case analysis method to explain the disputes and defects in the quantity of crime and accusation type selection these two aspects among the current existing criminal judgment,and refutes "the accusation selection criteria centered on the purpose of the criminal actor” and " the accusation selection criteria centered on the loss undertaken party.The above two criteria in determining accusation both fragmented the whole crime structure into single elements.The third chapter carefully demonstrates the current solution to criminal liability ascertainment in "Both ends fraud" secured loan cases.First of all,the author tries to determine the criminal liability by applying the paradigm of the multi-parties triangle fraud,but it shows an obvious "New Climate Sickness" phenomenon;therefore,the author advocates to go back to the classic paradigm of two parties fraud,and found the exits to get away from the problems of criminal liability determination,in the center of the judgment based on cause and effect.The author puts the behavior of realizing the commercial bank's secure right into the chain of cause and effect,effectively overcomes the obstacles of “misplacement” between behaviors and results,and points out that whether commercial bank fulfill the obligation of prudent duty of care is playing a key role in criminal liability determination.The fourth chapter attempts to discuss the impact “Both ends fraud”secured loan cases imposed on fraud crime decision.This part breaks the regular “objectification of victim” theory in criminal law,and studies under the condition that conforming to the crime structure of loan fraud crime,whether the wrong behavior of commercial banks can provide justification of exemption for borrowers.The author comments on the four controversial theories: the Victim Dogmatism,the Risk Allocation Jurisprudence,Victim Commitment,and Victim Self-responsibility.However,the above theories are all agree that the victim's behavior in the fraud crime to some degree can weaken the criminal actor's punishability.