| With the growing demand for financing and loans,as the only crime of fraud that does not aim at illegal possession,the frequency of judicial application has increased significantly in recent years,and the theory of pocketing the crime of loan fraud has gradually emerged.It is a very important task to define the scope of application of this crime reasonably,so as to not only effectively crack down on criminal fraud,but also not occupy the space of civil relief and administrative punishment.This paper collects the criminal judgment documents about the cases of loan fraud in the past six years,and intends to make an empirical investigation and Analysis on the scope of judicial application of the crime of loan fraud,and reasonably define the applicable conditions of this crime.The first part is the judicial empirical study of the crime of loan fraud.Judicial organs often include the financial order which belongs to the scope of State Administration into the legal interest of this crime,and ignore the influence of the financial institutions’ staff who knowingly cheat the loan but still issue the loan on the qualitative.It is also inclined to put all the false loan behaviors into the scope of deception means of this crime,identify the guarantee property that the loan guarantor compensates to the financial institution as "major loss" or "other serious circumstances",and mechanically take the number and amount of loan deception as the standard of serious circumstances.Thus,the crime of defrauding loans has been extended in judicial application.The second part is the analysis of the specific problems of expanding the application of the crime of defrauding loans.First,in the identification of the object of deception,the judicial organ often treats the financial institutions without independent consciousness as the victims of cost crime;second,in the identification of deception means,it often weakens the judgment of the degree of criminal harmfulness;third,in the calculation of losses,it often improperly includes the identification cut-off points of loss and early loss of non-financial institutions,which expands the scope and amount of losses;fourth,it determines the serious situation At the same time,the "equivalence" analysis between serious circumstances and heavy losses was ignored.The third part is the path of restricting the application of the crime of defrauding loans.We should strictly limit the legal interests of the crime of swindling loans,and only the act of swindling loans that endangers the safety of credit funds can have the infringement of legal interests;we must strictly abide by the logical structure of the crime of swindling loans,and make a systematic determination with reference to the crime of swindling loans and the pre administrative legal norms;we should correctly understand the connotation of major losses,and only after the pre measures and legal procedures as far as possible or necessary are still possible The loss that can not be recovered and reaches the legal amount can be identified as the crime of loan fraud.In addition,the identification of other serious cases should follow the principle of homogeneity,and the evaluation criteria should be changed from the theory of only the number of times to the theory of risk of loss. |
