The Analysis On The Cases Of Trap Loan Of Sun And Others

In recent years,there has been an illegal criminal activity named "Trap Loan" in China.It is based on private lending to form a loan relationship with the victim by fabricating facts or concealing the truth and illegally occupies the victim’s property by using violence,threat and other means after the victim realizes that they have been cheated.Even though the Supreme People’s Court,the Supreme People’s Procuratorate,the Ministry of Public Security and the Ministry of Justice jointly promulgated a document named “Opinions on Several Issues concerning the Handling of ‘Trap Loan’ Criminal Cases” so as to regulate this sort of illegal behavior,related judicial decisions in practice still are quite different.This article selects and analyzes three sample cases to summarize three common disputes: First,whether the act of providing loans by the actor belongs to fraud or private lending;Second,whether the amount of fraud should deduct the relevant property benefits obtained by the victim;Third,whether there is implicated relationship between several criminal behaviors of the actor.Regarding whether the actor constitutes a crime of fraud,the core lies in whether the act has the elements of fraud.In the sample cases,the behavior of the acto r is in line with the constitutive requirements of fraud,and the crime of fraud is established.The key to the determination of the amount of fraud is how to understand the property loss.Through the analysis of theories and legal provisions,this article adopts the theory of overall loss of property and the theory of infringement that the principal and reasonable interest forming the part of the factual loan relationship should not be included in the amount of fraud during the calculation.Regarding whether there is implicated relationship between several criminal behaviors of the actor,the author adopts the compromise theory and comprehensively consider the implicated relationship from the subjective and objective aspects according to the analysis of relevant legal theories and judicial documents.In the sample cases,there is a close relationship between the actor’ s pre-fraud behavior and subsequent blackmail,extortion and trouble-making activities with the purpose and method,or with cause and result in the subjective intention.However,from an objective perspective,the subsequent criminal means adopted by the actor are random and have no objective relationship with the former fraud so that belongs to combined punishment for several crimes.