On The "Deception" Of The Crime Of Defrauding Loans

Since joining the World Trade Organization,China’s financial industry has achieved leap-forward development,the financing needs of the public and enterprises have been increasing,the loan scale has been expanded year by year,and the loan forms have been constantly improved and innovated.However,there exist some companies or individuals who use forged application documents to obtain bank loans fraudulently,and this behavior has a serious impact on the normal financial market order,thus bringing huge losses to banks.However,because in most cases,the borrowers do not have the purpose of illegal possession,so they cannot be regulated by the crime of loan fraud.For this reason,the Criminal Law Amendment(VI)added the crime of loan fraud,thus providing a legal basis to combat fraud without the purpose of illegal possession to a certain extent and filling the punishment loophole of loan fraud.However,because of the simplicity of the law on loan fraud,it is difficult to apply it precisely in judicial practice,thus resulting in the expansion of the penalties for it.The article starts from the concept of "deceptive means",analyzes some problems in practice,and on this basis,the correct understanding of "deceptive means" and limits the scope of application of the crime of fraud,some useful exploration.By sorting out and analyzing the current situation of "deceptive means" in the crime of obtaining loans,it is believed that the scope of its identification is too broad,the criteria for identification are vague,and the identification of the deceived object is unclear.The "deceptive means" as an important element of the objective elements of the crime of fraudulent loans,if not correctly understood,it is easy to cause misuse in judicial practice.The root cause of this phenomenon lies in the misunderstanding of the legal interests protected by the crime,as well as the differences in the understanding of the construction of the act.Therefore,this requires us to combine the relevant theories of criminal law to make a reasonable application of the crime of obtaining loans by deception.In terms of the nature of the crime,the object of protection for the crime of loan fraud is the security of credit funds,while "deceptive means" is only constituted when there is a danger of endangering credit funds.In terms of the structure of the crime,the crime of obtaining a loan by deception is similar to the crime of ordinary fraud,in that the link between the "deceptive means" and obtaining a loan is based on the misunderstanding of the bank employee;the crime of obtaining a loan by deception is based on the element of "causing substantial loss" as the result,so the use of The crime of obtaining a loan by deception is based on the element of "causing significant loss",so the use of "deceptive means" and causing significant loss should have a high degree of conclusiveness.In order to solve the problems existing in judicial practice,we should limit the identification of "deception" from the following aspects.First of all,deception means should be a substantial deception in four aspects: loan purpose,repayment ability,loan subject and guarantee situation,and the act of providing true and full guarantee when applying for a loan cannot deny the establishment of other deception means;Secondly,fraudulent means should make bank staff fall into a wrong understanding,and judge this by bank staff instead of ordinary people’s standards;Banks decide to issue loans based on misconceptions,and in practice,they should make comprehensive judgments based on the types of loans and the specific circumstances of cases;Thirdly,the target of deception is the decision-maker who has the decision-making power to issue loans,and it does not change because of whether his decision is for the benefit of the unit,and the person in charge of loan investigation does not belong to the target of deception;Finally,in the case of "knowing" by bank staff,it is clear that the subject scope of "knowing" is larger than that of the deceived object,and such cases are uniformly divided into lax review type,instruction type and malicious collusion type for handling.