Study On The Criminal Penalty Of "Double Fraud" In Secured Loans

The "double fraud" of secured loans refers to the behavior that the perpetrator not only makes the guarantor provide a guarantee for himself through fraudulent means,but also defrauds banks and other financial institutions to obtain loans by using the guarantee.This topic originally came from specific cases in judicial practice,and gradually became a common concern of the criminal law academic circle after constant questioning and discussion.However,neither the practical nor the theoretical circles have reached a consensus on the characterization of this behavior in criminal law,which has led to the frequent occurrence of "different sentences for the same case" in judicial practice,which seriously threatens the justice and authority of the judiciary.Base on the analysis of judicial precedents involving the behavior of "frauding guarantees first and then defrauding loan" in past five years,this paper finds that the court and procuratorate have different views and attitudes on behavior,and reflect the underlying reasons for the problems.The main reason is that the judiciary has misjudged the influence of civil legal relationship on criminal legal relationship in such cases.Specifically,it includes the interference of the civil consequences of acts on the criminal law,and the influence of the civil nature of the guarantors on the criminal law of acts.Generally speaking,there are roughly the following aspects: First,the judiciary has a wrong understanding of the time when the act involves the consummation of the crime.When the victim loses control of the property,the crime has actually been accomplished,and the nature of the act has been determined in the criminal legal relationship.Secondly,the act of defrauding guarantee is a fraudulent act committed by the actor using the guarantee contract signed by the guarantor and the lender.One party to the contract is always a financial institutions such as a bank.This act will inevitably violate the market economic order,thus constituting the crime of contract fraud.The civil nature of the guarantor has no influence on the criminal law evaluation of defrauding the guaranty.In addition,the judiciary’s insufficient evaluation of the overall behavior is also an significant reason for "different judgments in the same case".Based on the sorting and analysis of the existing viewpoints,as well as the exploration of the causes leading to the phenomenon of judicial practice,suggestions on the criminal law of the "double fraud" of secured loans are put forward: fraudulently obtain guarantees constitutes the crime of contract fraud,and fraudulently obtaining loans constitutes the crime of loan fraud,the two acts should be implicated in a felony,namely the crime of loan fraud.First of all,the guarantor,the lender and the perpetrator cannot be included in a criminal legal relationship,and fraudulently obtaining guarantees and fraudulently obtaining loans infringe different legal interests,and should be evaluated separately in criminal law.Secondly,in the act of defrauding guaranty,the guaranty belongs to property and property interests,both belonging to the category of property.The perpetrator deceives the guarantor to establish a guaranty on his won property,causing losses to the guarantor,and the perpetrator is implementing the fraud has direct intentional and illegal possession purposes,and should be punished as the crime of contract fraud.Thirdly,since the actor has no ability or willingness to repay the loan from the beginning,according to the actual individual property theory,even if the actor only provides the lender with a guarantee with source defects,the lender will fail to realize the purpose of disposing of the property.And suffer property damage.The behaviors of the perpetrator to provide false loan information and source defect guarantees are all fraudulent behaviors.When they carry out the above behaviors,they have direct intentional and illegal possession purpose,and the behavior should be punished as the crime of loan fraud.Finally,as far as the relationship between the two behaviors is concerned,from a subjective point of view,the "double fraud" behavior of secured loans has a direct pursuit of purpose.From an objective point of view,the behavior of defrauding guarantees and defrauding loans has the mater and subordinate of the means and the purpose.If the two acts are implicated and meet other characteristics of the implicated offender,they should be punished from a felony according to the punishment rules of the implicated offender.