"Determination Of Significant Losses" In The Crime Of Defrauding Loans ——Taking 159 Criminal Judgments In Jiangxi Province As An Example

"Criminal Law Amendment（11）" deletes "other serious circumstances" in the crime of defrauding loans,so the determination of "significant losses" in this crime is of great significance.Through the research of this thesis,on the one hand,it can better protect the financial security of financial institutions;on the other hand,it can also provide a certain reference for the determination of "significant losses" in the crime of defrauding loans in judicial practice.In order to identify the "major losses",it is clear that the legal interests protected by the crime of defrauding loans take the first place,and "fund security" is more important.In line with trial practice and legislative purposes,it has certain desirability.In addition,in order to more systematically interpret the meaning of "significant loss" itself,this article sorts out the provisions of "significant loss" of the criminal law.In addition,the nature of "significant loss" in this crime is the boundary between crime and non-crime,and it is feasible to identify it as a "quantitative factor of harmful outcome".Through the judicial practice investigation of 159 cases of fraudulent loan fraud in Jiangxi Province,can find the laws and characteristics of the determination of "significant losses" : First,in the determination of time,some courts determined that it was "the time of the incident",and some The court identified it as "when the loan is due",and some courts identified it as "the first instance judgment".Second,in the determination of the scope of damage,on the one hand,some cases only recognize the "principal" as a major loss without interest,and some cases recognize the "principal and interest" as a major loss;on the other hand,Some courts recognize the loss of the guarantor as a major loss,and some courts do not recognize the loss of the guarantor as a major loss.Third,in the determination of "significant losses" under the fault of a financial institution,some cases consider the impact of the fault of the financial institution on the significant loss,and believe that it should be less severe or not constitute a crime;The impact of the damages shall be deemed to constitute major losses and constitute the crime of defrauding loans.Fourth,in the determination of "significant losses" in the presence of valid guarantees,some cases consider the impact of the defendant’s existence of valid guarantees on major losses,and believe that it should be lenient or not constitute a crime;some cases do not consider the defendant’s Valid guarantees are all deemed to have caused significant losses and constituted the crime of defrauding loans.Therefore,there are still some problems in the determination of "significant losses" in the crime of defrauding loans.First of all,the identification time is diversified,and the applicable standards are not uniform.The timing of when to start calculating significant losses plays a pivotal role in the identification process.However,there are three different judgments in practice,and there is no unified identification standard.Secondly,the scope of damage is blurred,and the boundary of loss is not clear.It is imprecise whether "significant loss" includes interest or whether it covers the guarantor’s loss.Finally,the reason for the investigation is one-sided,and the loss is determined to be incomplete.Under the circumstance that the defendant provides an effective guarantee,the financial institution can completely realize the security right without causing "significant losses" to the financial institution,and naturally it does not constitute the crime of defrauding loans.However,the practice of ignoring the effective guarantee provided by the defendant in the trial practice and still finding it to cause heavy losses is debatable.Likewise,it is debatable that the financial institution is still considered to have caused significant losses when the financial institution is at fault.Taking the judicial practice of Jiangxi Province as an example,in order to identify the "significant losses",the judicial determination should be regulated from the following aspects.First,systematically expound the connotation of "significant losses" in the crime of defrauding loans: the direct material losses of financial institutions caused by deceitful acts,and make corresponding amendments to the "Prosecution Standards（2）".Second,uniformly stipulate the time for major losses: for the case of voluntary repayment before the incident,because no actual loss was caused,it should not constitute a crime.For the repayment of principal and interest after the incident and before the judgment,although it does not affect the establishment of the crime of defrauding loans,the punishment should be lighter or mitigated.Third,it is necessary to reasonably define the scope of the crime of defrauding loans.It is clarified that the scope of "significant losses" is limited to the principal and does not include interest,and other expenses other than the principal should not be regarded as major losses,such as the litigation costs of banks or other financial institutions for recovering loans;The scope does not include the loss of the guarantor,and is limited to the loss suffered by the victim’s financial institution.Fourth,comprehensively examine the causes of major losses.In the process of identifying "significant losses",the fault of the victim’s financial institution should be reasonably considered,and judgments should be made according to the specific circumstances of the case.At the same time,if the borrower has a valid guarantee,it should not be deemed to have caused "significant losses" to the financial institution.