Legal Interest Confirmation And Judicial Confirmation Of The Crime Of Defrauding Loan

The crime of cheating on loan was set up in 2006 with the aim of tightening the law net,punishing fraudulent loans that are not aimed at illegal possession,and filling the Crime of Loan Fraud.After the establishment of this crime,it shows the phenomenon of expanded application in judicial practice.In view of this,Amendment(XI)to the Criminal Law of the People's Republic of China in 2021 revised this crime by deleting the expression of "other serious circumstances",which solved the problem of applying "other serious circumstances" as the bottom clause,but the problem of expanding the application of this crime still exists.This paper makes an empirical study and analysis of this crime,investigates the specific problems in judicial practice,and puts forward solutions to clarify the judicial application of this crime.This paper starts from the following four parts:In the first part,this paper makes statistics on the judgments of the crime of cheating on loan in the past ten years,and studies 50 judgments of "serious loss" from2018 to 2021.It is found that the expanded application of the crime of defrauding loans is mainly influenced by two factors: the identification standard of "fraudulent means" and the judgment of "serious loss".The second part mainly discusses the legal interests and judgments protected by this crime.By analyzing different viewpoints,it is considered that the legal interest of the crime is the security of credit funds,which overcomes the limitation that the "financial management order" cannot provide reasonable explanation for the elements of the constitutive requirements,and is in line with the idea that the economic criminal law mainly punishes the criminal acts of abusing economic freedom and economic power under the market economy mode.In order to ensure the accuracy of the application of the crime,the legal interest of the crime focuses on the safety of credit funds,and at the same time,the actual damage caused by the behavior is the criterion of conviction.Failure to cause significant losses to the credit funds of financial institutions does not constitute this crime.The third part focuses on the analysis of the judicial identification standard of "fraudulent means" of the crime of defrauding loans.Empirical research shows that the identification of "fraudulent means" is too formal,ignoring the relationship between fraud and obtaining loans,and taking fraud as the standard of conviction.In order to solve the above problems,the following standards should be adhered to in judicial practice: "" Fraudulent means "" is an act that has a significant impact on financial institutions' loans,which not only has a direct causal relationship with obtaining loans,but also causes financial institutions to suffer heavy losses as a result of loans.The fourth part mainly discusses the criteria of "serious loss".In view of the different criteria for determining the amount of "serious loss" in judicial practice,it is considered that the identification time of "serious loss" should take the public security organ as the node when filing a case,the loss of the principal of financial institutions is the standard for determining the amount of "serious loss",and the interest generated by loans should not be included,and the "loss theory" should be adopted instead of the "amount theory" when identifying "significant loss",which refers to the principal that cannot be paid off after financial institutions take relevant measures.