The Definition Of The Application Range Of The Crime Of Obtaining Loans By Fraudulent Means

As the further development of reform and opening-up,financial transaction is increasingly booming and obvious increase of financial crime also arise.To strengthen the protection of bank credit funds,timely remedy legal loopholes and effectively combat financial crimes,the crime of obtaining loans by fraudulent means,one of Article 175 of the Criminal Law,was added to the Amendment(VI)to the Criminal Law.Since the legislation,this regulation has played a vital role in punishing the crime of obtaining loans by fraudulent means and maintaining the financial order.However,with the further development of society and economy,some problems have emerged in the judicial application of the relevant provisions of the crime of obtaining loans by fraudulent means,such as the neglect of the substantive judgment of the danger of fraud,the neglect of the investigation of causality,the disunity of the identification standards of criminal results and criminal circumstances,and the unclear scope of accomplices and so on.Actually all issues mentioned above are important problems in the estimation of application range of the crime of obtaining loans by fraudulent means.This paper will discuss problems mentioned above one by one,hope to accurately and reasonably define the scope of application of the crime of obtaining loans by fraudulent means and promote the accuracy and unity of relevant judicial practice.Except the introduction,other four parts are contained in this paper.In the first part,on the basis of combing the legislative process of the crime of obtaining loans by fraudulent means,through the careful combing of typical cases in practice,the general and representative problems reflected by it are summarized,and the specific causes of these problems are deeply analyzed.It points out that the current prominent problems surrounding the judicial application of the crime of obtaining loans by fraudulent means include that the neglect of the substantive judgment of the danger of fraud,the neglect of the investigation of causality,the disunity of the identification standards of criminal results and criminal circumstances,and the unclear scope of accomplices and so on The reasons for these problems are unclear legislative provisions,the absence of relevant judicial interpretations and guiding cases,the misplaced application of "Prosecutions Standards(II)",and the unclear boundary of legal interests that the traditional view of legal interests regards financial management order as the protection of loan fraud crime,which cannot provide guidance for judicial practice.The second part mainly defines the "fraudulent means" in the crime of obtaining loans by fraudulent means,and clarifies the causal relationship between “fraudulent behavior" and "obtaining loan"."Fraudulent means" involves the interpretation of the legal interests of the crime of obtaining loans by fraudulent means.Credit fund security is more reasonable for the legal interests of the crime of obtaining loans by fraudulent means.Because it is in line with the original intention of legislation with clear content and clear scope margin of legal interest,it can provide effective guidance for the judicial determination of loan fraud,and is conducive to the implementation of the principle of legality and legal interest protection,which effectively prevents the excessive expansion of the criminal law and is more in line with the modesty of the criminal law.Under the guidance of the legal interests of the security of credit funds,it can be made clear that not all fraudulent behavior can be identified as "fraudulent means",and it should be identified as fraudulent means when the actual operation risk of the loan is significantly increased by changing the purpose of the loan and then is enough to cause the security risk of the loan.When the borrower applies for a loan,the act of providing true and full guarantee still has the risk of infringement of legal interests,so establishment of the crime of obtaining loans by fraudulent means cannot be directly denied on the grounds of the existence of true and full guarantee.When it comes to the question of whether the awareness of staff in banks and other financial institutions on cheating behaviors will cut off the causal relationship between the "fraudulent behavior" and "obtaining loans" causing a prevention on the establishment of the crime,two different kinds of circumstances should be distinguished: If a loan is granted without prior collusion but is discovered at the time of making the loan,the act belongs to the financial institution.Because the financial institution is not caught in the wrong understanding,the causality chain is cut off and so the crime is blocked;If the staff of a financial institution colludes with the outside and the inside in advance,the act shall not be attributed to the financial institution that shall not prevent the establishment of the crime of obtaining loans by fraudulent means.The third part mainly identifies the "heavy loss" and "other particularly serious circumstances" of the crime of obtaining loans by fraudulent means."Heavy loss" should be limited to the scope of direct economic loss,the loss caused by interest and losses incurred in trying to recover the loan is the indirect economic losses and should not be incorporated in the "heavy loss",and the loss of the guarantor should not be calculated into the scope of “heavy loss” which is not in the protection of the crime of obtaining loans by fraudulent means;For the identification time of loss of financial institutions such as banks,It is more reasonable to take the time when the public security organ put on record as the identification time node;As for the amount standard of "heavy loss",it is more reasonable to take the provisions of illegal loan issuing crime as the basis."Heavy loss" in the crime of obtaining loans by fraudulent means should be the direct economic loss between 500 thousands to or more than one million yuan caused to banks and other financial institutions,while “Extremely heavy loss” refers to the direct economic loss between or more than 3 to 5 million yuan.The fraudulent behavior of the borrower with extremely serious circumstances may cause legal interest harm which is roughly equivalent to the extremely serious loss.If the crime is constituted because of a “extremely serious circumstance”,first,there must be a fraudulent behavior that is sufficient to be evaluated as a fraudulent means;Second,due to there is no actual loss,the existence of “extremely serious circumstances” should cause the risk faced by bank capital has an obvious increase.The "extremely serious circumstances" can be defined as : those who have already received criminal penalties twice for fraudulently obtaining loans and make a fraudulently obtaining loans of more than 3 million yuan again;Repeatedly defrauded loans of more than 3 million yuan,although no actual loss has been caused;Other circumstances that are sufficient to cause extremely serious loss to the capital of banks and other financial institutions.The fourth part mainly discusses the identification of the accomplice of the crime of obtaining loans by fraudulent means.The establishment of an accomplice must contains the act and the intention of joint crime,and there is physical causality or psychological causality between the joint crime behaviors and the harmful consequence.The staff of the intermediary institution who objectively provided help for the borrower’s fraudulent behavior due to the work error shall not be convicted of the crime of obtaining loans by fraudulent means;A guarantor who knows clearly that the borrower defrauds a loan and provides real and full collateral security for the borrower shall not be punished as an accomplice in the crime of obtaining loans by fraudulent means,since it is the behavior that reduces the security risk of credit capital;Among the numerous personnel involved in making false trade chain to defraud loans,those who have no obvious profit and no obvious effect on the consequences of the crime should not be punished as accomplices in the crime of obtaining loans by fraudulent means.When financial staff defraud the loan with outside personnel,they shall be convicted and punished in accordance with the imaginative joinder offenses.That means they can be convicted on different charges.Concretely speaking,from the perspective of financial staff,he or she not only can be taken as the principal offender of illegal loan,but also can be taken as the accessory offender of the crime of obtaining loans by fraudulent means;From the perspective of borrower,he or she can be taken as the principal offender of the crime of obtaining loans by fraudulent means,but also can be taken as accessory offender of the crime of illegally granting loans,so both of them should be given a felony penalty.