A Study Of Criminal Classification By Dual Fraud Behavior In Secured Loan

With the increasing control of credit risk,the commercial lending between commercial subjects and financial institutions is based on the principle of providing guarantee.Under this financial background,the dual fraud case,which aims at illegal possession of money and swindles the trust of the third party first,then swindles the bank loan,comes into being.The dual fraud goes beyond the simple structure of the traditional crime of fraud,which regulates the behavior between the two.It is reflected in the fact that the guarantor makes the property loss liquid,thus causing the problem that the victim can not be determined.Therefore,there are many disputes in the theoretical and practical fields about the determination of the number of crimes and the qualification of the Criminal Law of dual fraud.Firstly,this paper summarizes and sorts out the typical types of dual fraud cases,and explores the nature of disputes.Because some elements of this kind of case involve civil domain,it is a typical cross-issue between criminal and civil,this article will also clarify the cross-issue between criminal and civil.On this basis,through the causal analysis and the analysis of the constitutive elements of dual fraud to explore the nature of the Criminal Law.The first chapter summarizes the cases of double fraud in secured loans.Firstly,the typical types of cases are summed up by sorting out the judicial documents.Second,summarize the points of contention.It is found that the disputes of this kind of cases mainly focus on the number of criminal acts and the application of charges.Third,analyze the essence of the dispute.The disputes are caused by the different understanding of the validity of the contract,the evaluation of the guarantee performance,the identification of the property loss and the legal interests protected by the crime of loan fraud.Fourthly,analyze the problems existing in the current disputes.This paper holds that the status of the validity of the guarantee contract and the identification of the victim should be clear and the analysis of the Constitution of the crime of behavior should be strengthened.The Second Chapter Discusses the criminal and Civil Issues in dual fraud cases.First,discuss the properties of guarantees.According to the principle of the dichotomy of property and debt,the essence of guarantee is the right of claim,which is the property interest directed by the abstract creditor’s right The real right of security,which is characterized by mortgage and pledge,is the right of domination and the "value of property" directed by concrete property.Property interest is the inferior concept of "property",the object of property crime in our country,and also the legal interest of property crime protection.Real right of security is a right in rem,and its protective status in criminal law should be the same as ownership and possession,which is an important legal interest in property crime protection.Secondly,the premise of the discussion on the cross-issue of Criminal Law and civil law is the separation of criminal law and civil law.The analysis of the civil elements such as the validity of contract should follow the principle of the separation of punishment from the people to avoid the excessive invasion of public power into the field of private law.Thirdly,analyze the validity of the contract involved in the case.Contracts concluded as a result of criminal activity are not ipso facto null and void,and in accordance with the contract law and its relevant provisions,contracts concluded as a result of fraud are voidable and therefore can be exercised by the financial institution of the principal creditor.The Third Chapter,discusses the dual fraud of the criminal nature.The first part is the analysis of causality.First,determine whether there is a result of property damage.The crime of fraud is the result crime,so it is necessary to judge whether the property damage consequence of criminal law evaluation appears in the analysis of causality.Based on the overall property reduction position,if the actor has provided sufficient security to apply for a loan,the bank has already taken the security right at the time of the disposition of the loan and there is no property loss.In this case,even if the bank cancels the loan contract with the right of cancellation,the judgment of the property loss will not be affected.According to the General German case law,the judgment time of the property loss is the time when the bank disposes of the loan when the disposition occurs,a guarantee contract is valid and the bank has obtained a corresponding security right under the guarantee contract;in the case of an insufficient guarantee,both the guarantor and the financial institution suffer property losses.Secondly,the analysis of property damage and the results of the actor’s deception whether there is a causal relationship.In the case of full guarantee,the fraud causes the guarantor to have a wrong understanding,and to dispose of the property or interests based on the wrong understanding.In the absence of full security,the real security provided by the actor and the false appearance of its capacity to perform through fraudulent acts are two important reasons for bank staff to misperceive and dispose of the loan,so it’s safe to say that there’s a double causality.Second,the composition of the crime analysis.First,in the case of full guarantee,the actor constitutes the crime of contract fraud."The contract of entrustment of guarantee" signed by the actor and the guarantor through deception,on the basis of which the guarantor provides guarantee for the actor and disposes of the secured property,after that,the bank will make the above-mentioned property into cash and then hide the loan.The above-mentioned behavior is in accordance with the provisions of Article 224 of the Criminal Law of our country,establishing the crime of contract fraud to the guarantor.In this case,there is no actual loss of property in financial institutions.According to the view of "legal interest of interest",a crime should not be considered as a crime for a simple illegal act without specific legal interest damage.Secondly,in the case of non-full guarantee,there are two deceptive acts and two harmful results of property loss,and both have causality,which seems to constitute several crimes,but the actor only has a general intention subjectively,according to the theory of the number of crimes according to the criterion of constitutive elements,crime is the unity of subjectivity and objectivity.Therefore,in this case,the behavior of the actor only conforms to a complete criminal constitution,its behavior should be based on the total amount of crime,choose a felony punishment.There is no space for the crime of contract fraud when the actor does not have the purpose of illegal possession.As to whether the crime of obtaining loans by deception is established,under the circumstances of full guarantee,the bank has no loss of property,the perpetrator has not caused significant losses to the financial institution or other serious circumstances,and there is no real threat of loss of loans,it does not constitute the crime of defrauding loans;in the case of non-full guarantee,financial institutions have property losses,and if the amount of the crime is up to the standard,the actor may constitute the crime of defrauding loans.