| In recent years,our country continue to ease market access threshold to micro,small and medium enterprises enter the market,to promote the development of market economy,and gradually open financial borrowing areas to solve the problem of micro,small and medium enterprises financing difficulties.the subsequent is a series of problems in the field of financial loans.secured loan "double fraud " case(hereinafter referred to as "double fraud" below)is more complex.Current theorists think of "double fraud" refers to that person under the purpose of illegal to occupy others property.with dummy fact,concealing the truth means and make the guarantee to set an guarantee,to defraud the guarantee defrauding Banks and other financial institutions(hereinafter are used bank instead)loans to return the patterns of behavior,the perpetrator has the property for security purpose of illegal possession,the guarantor or loans of general purpose of illegal possession,also make two means of fraud,thereby causing loss to the guarantor and the bank double result or may be."dualism" makes the judicial practice department of such cases that differ,the referee basis and the result is very different,There is not only the controversy between the theory of innocence and the theory of guilt,but also the contest between the crime of loan fraud and the crime of contract fraud.It can be seen that the complexity of this kind of cases,the author intends to combine the dozens of similar cases found in the Chinese court documents network as the basis,combined with the theoretical discussion of the "double fraud" case analysis,in order to solve the difficult problem of its qualitative.In addition to the introduction and conclusion,the thesis is divided into five parts.The first part beginning quoted three "double fraud case," in reference to a few cases,belong to the same crime behavior patterns,namely first diddle guarantees,defrauding bank loans and refuse to return,after but the judicial practice to defraud crime,contract fraud,crime of fraud of the credit loan.show status that do not have a unified judicial judgment,at the same time,describe the case charges of opinion,defense opinions,the referee as a result,summarize in a few cases,organize ideas and characteristics of the judicial practice.raises the need problem discussed in this paper,such as this case the path of the qualitative method,the cases of disputes,etc.Combined with the 42 judgments of "double fraud" cases found by the author on the website of China judicial documents website and beida talisman website,it canbe learned from the summary judgment that there are several different results of the judgments in such cases,including acquittal,crime of loan fraud,crime of contract fraud and crime of loan fraud.Finally,analyzes the judgment characteristics of the above cases.The second part is a detailed discussion in the first part of the current practice in our country and the theory on double fraud cases to use when qualitative path and direction,specifically refers to the subjective purpose of socialism and the victim loss two ideas,concrete analysis under two kinds of path argument basis and the differences and similarities of two shortcomings and defects of the path analysis,draw lessons from the two paths of strengths and advantages,complement each other and put forward the author understands the third path.Based on the core of behavior,the author takes behavior as the orientation and the infringement of legal interests as the foothold,and makes a reasonable evaluation on the existence of guarantee,so as to make up the deviation of the existing path in the qualitative analysis of guarantee.The third part discusses the status and function of the true guarantee in this case.Firstly,the effectiveness of the contract is analyzed,that is,the contract signed by the actor and the guarantor,the loan contract signed by the actor and the bank,and the security contract signed by the guarantor and the bank.The different effectiveness of the contract will affect the final damage trend of the case and affect the qualitative of the case.In addition,the reasonable characterization of the guarantee,that is,whether the guarantee belongs to the category of criminal law protection,and whether it belongs to the protection of contract fraud,has important value to the case characterization,as well as the position and role of the guarantee in the criminal law,and other cross issues between criminals are the key to solve the dispute of the case.The fourth part is based on the reasonable characterization of the case on the basis of the above dispute resolution.Firstly,the author confirms the crime and non-crime of "double fraud" case,because the crime and non-crime are the primary questions to be answered.Based on the characteristics of the crime,the author analyzes the social harmfulness of the actor’s behavior,the nature of criminal law violation,and the nature of punishment.Then,the case of the actor’s fraudulent loan is identified as the most typical case of "double fraud",that is,the actor is a series of behaviors for the purpose of illegal possession,and the theoretical discussion is also based on this case.In the process of argumentation,the author conducts separate argumentation with the two ACTS of the actor,analyzes the infringement of legalinterests and the constitutive elements of the crime,and then discusses whether the relationship between the two ACTS constitutes one crime or several crimes,and finally makes a final and complete qualitative analysis based on the performance of the guarantee.The fifth part discusses the situation of fraudulent loan and the transformation of offense.This part is the possible situation in practice extracted by the author when studying judicial cases.The situation of fraudulent loan refers to the behavior appearance of "double fraud" carried out by the actor without the purpose of illegal possession,that is,the behavior of fraudulent guarantee and fraudulent loan respectively.Some scholars have confused this situation with the situation of fraudulent loan.The conversion of offense means that the actor has no illegal possession purpose when obtaining the loan,and has illegal possession purpose after obtaining the loan due to various reasons. |
