On The Judicial Application Of The Crime Of Loan Defrauding

With the continuous development of socialist economy,under the background of continuous reform of China’s financial system and continuous opening of the financial market,the demand for funds of all kinds of subjects in the market is very strong.The scale of social financing has been expanding,and more and more loan applicants who do not meet the conditions for loan application have taken fraudulent means to obtain financing,resulting in increased credit risk,property losses suffered by financial institutions and threats to financial security.In order to ensure the sustainable and healthy development of the financial industry,China added the crime of loan fraud in2006 to cover the omission and deficiency of loan fraud.However,since the establishment of the crime of defrauding loans,it has often expanded its understanding in practice,which has adversely affected the judicial application of this crime.Although the amendment to the criminal law(11)implemented in 2021 excludes "other serious circumstances",it will cause significant losses to financial institutions as the only criterion to measure whether fraud ACTS constitute a crime,raising the threshold for entry and curbing the long-term application trend of the crime of defrauding loans.However,in judicial practice,there are still many disputes in the identification of various elements of the crime,which needs to be further explored.Based on the analysis of the current judicial judgment cases,it is concluded that the application of the crime of loan fraud mainly includes the following problems: the one-sided determination of deception means and the failure to make a substantive judgment on cheating behaviors;The investigation of the behavior object is unknown,whether the micro loan company is included in the scope of other financial institutions and is cheated is controversial,resulting in the identification of the crime of the crime of different cases.The identification standard of major losses is not uniform,resulting in the punishment of deformity and weight;What is "other particularly serious plot" is controversial,leading to certain ACTS that are only slightly socially harmful and do not even touch on the merits of this crime and law are considered crimes.Only when the law is implemented can it show its value.In order to solve the dilemma faced by the crime of defrauding loan in the process of implementation,it should first start from the constitutive elements.The identification of the crime of loan fraud needs to meet two prerequisite conditions: one is to use deception to obtain loans,and the other is to actually cause great losses to financial institutions.First of all,when identifying "deception means",it should be limited to fraud only if the subject identity,capital use,fund guarantee and repayment ability are deceptive,and this kind of deception is enough to make the lender misjudge and thus lend.At this time,there is a causal relationship between the deception and the deception result,that is,the actor’s acquisition of the loan can only be based on the recognition of the staff who have the right to approve the decision of the lender.Secondly,there is no essential difference between small loan companies and traditional financial institutions,and they should be classified as other financial institutions and included in the protection objects of this crime.Thirdly,for major losses,it should be clearly defined as the result of constitutive elements,and its amount should be considered as direct economic losses,and the starting point of taking the case of case for losses shall be taken as the starting point for calculation.Finally,"other particularly serious circumstances" should be explained,and it is suggested to interpret it as 80% of the significant losses,while there are numerous fraud and falsification of important loan data,etc.,which significantly increases the risk of loan recovery.