Criminal Law Characterization Of "double Fraud" Of Secured Loans

The "double fraud" case of secured loan is a special type of financial fraud case under the background of today’s times.The case of "double fraud" of secured loans involves the guarantee of a third party,and the nature of the behavior is more complicated,which goes beyond the simple structure of the traditional crime of fraud that regulates the behavior between the perpetrator and the victim,so there is controversy in conviction and sentencing.Based on the controversial issues in judicial precedents,the author makes a legal analysis of the "double fraud" of secured loans in combination with various viewpoints in theoretical circles,with a view to providing an effective path for judicial organs to deal with such cases.This paper is divided into three parts:The first part,the second chapter is the definition of "double fraud" of secured loans and the qualitative dispute of criminal law.First of all,the correct definition of criminal behavior is the basis for meaningful discussion.Therefore,to explore the accurate nature of the "double fraud" of secured loans,the author will first define the "double fraud" accurately.Secondly,it explains the handling of "double fraud" of secured loans in judicial practice and summarizes its controversial issues.Search nearly 100 referee cases,and sort out and summarize the handling of such cases in judicial practice.After sorting out and analyzing,it is found that there are two main controversial issues in the court’s determination of this kind of behavior.First,there are disputes over the determination of charges,and there are three modes of determination: contract fraud,loan fraud and loan fraud.Second,the number of crimes is controversial,and there are two modes of punishment for one crime and combined punishment for several crimes.Combing the reasons for judging,it is found that when the court determines what kind of crime the perpetrator constitutes,it mostly starts from the perspective of "property loss".Although it is reasonable,it has not realized the determination of the same criminal nature in the same type of cases.Therefore,to judge what kind of crime the perpetrator’s criminal behavior constitutes,it is necessary to judge whether the perpetrator’s behavior conforms to the specific crime constitution stipulated in the specific provisions of the Criminal Law.The second part,the pre-qualification of the "double fraud" behavior of secured loans is clear.Solving the qualitative problem of "double fraud" of secured loans involves two pre-existing problems.The first is the determination of criminal victims.In financial fraud cases,property loss is an essential element to constitute a crime.To characterize this kind of behavior,the most important thing is to clarify whose property has suffered losses and thus become a criminal victim.First of all,civil property loss is not the same as criminal property loss.It is necessary to identify the loss of criminal property within the logic of criminal law.Secondly,it is clear that the judgment standard of "property loss" in fraud is to adopt the theory of substantial individual property loss.Finally,according to the judgment standard of substantial individual property loss theory,both the guarantor and financial institutions such as banks have suffered property losses.The second is the identification of the subjective illegal possession purpose of the actor.Financial fraud crimes are all crimes with the purpose of illegal possession,which requires the perpetrator to subjectively possess other people’s property.It is found that the actor has the purpose of illegal possession of the property of financial institutions such as guarantors and banks.The third part,the solution of the qualitative dispute of the "double fraud" behavior of secured loans in criminal law.According to the pre-qualification of the criminal law of "double fraud" of secured loans in the third chapter,it is necessary to consider both the objective harmful result of "property loss" and the subjective illegal intention of "illegal possession purpose" in determining what kind of crime the actor’s behavior constitutes in double fraud of secured loans.In order to ensure that the act of defrauding the guarantee is consistent with the act of defrauding the loan subjectively,this paper classifies and discusses the double fraud committed by the actor according to whether the actor subjectively has the purpose of illegal possession.First,the actor subjectively has the purpose of illegal possession when defrauding the guarantee and defrauding the loan.In this case,fraud has caused losses to both the guarantor and the bank,which conforms to the constitutive elements of property loss of fraud crimes and constitutes fraud crimes.Therefore,the act of defrauding guarantees constitutes the crime of contract fraud,and the act of defrauding loans constitutes the crime of loan fraud.Second,the perpetrator only has the purpose of illegal possession when defrauding loans.In this case,the actor did not have the objective of illegal possession when he cheated the guarantor.Although he cheated the guarantor objectively,according to the principle of consistency between subject and object,the actor’s behavior against the guarantor did not constitute a fraud crime because it did not have the objective of illegal possession of property.The perpetrator can only constitute a crime of fraud against banks and other financial institutions,that is,if the loan fraud against banks and other financial institutions causes direct economic losses of more than 500 thousand,it constitutes a crime of loan fraud.As for the punishment of the number of crimes,if both defrauding guarantee and defrauding loan constitute crimes,the actor constitutes two crimes,but the two crimes are related to the means and the purpose.Under normal circumstances,one should be punished,and only in special circumstances where one can not be punished as a crime,several crimes should be punished together.