Research On The Objective Judicial Application Of The Crime Of Fraudulent Loans

The setting of the crime of loan fraud makes up for the penalty loophole of the crime of loan fraud,but there is no corresponding judicial interpretation in the specific application,and the application of the crime of loan fraud shows an improper expansion trend.The problems existing in the application of this crime should be specified.Based on the interests of the protection law of the security of credit funds,this paper studies the problems existing in the objective aspects of judicial application of this crime,mainly centering on the following three parts:The first part is to sort out the current situation and existing problems of judicial application in objective aspects of this crime.Through the search of the crime of loan defrauding.com,this paper sorted out the distribution of the number of cases of this crime from the four aspects of the application time,region,level and procedure of the charges,analyzed the application situation of the case of this crime,and conducted a random selection of existing cases to study the objective aspects of the judicial application of this crime and problems.Through the study and comparative analysis of judicial practice cases,the objective problems of this crime are summarized: first,the judicial identification of cheating behavior is different,specifically,the identification of cheating means is too formal,ignoring the consideration of the causal relationship between cheating behavior and obtaining loans;Second,the identification of the nature of small loan companies is doubtful,whether it can be identified as other financial institutions of this crime;Third,the starting point and the amount range of the identification of heavy losses are unclear,the specific loss amount of the starting point of the identification is not clear,the loss amount range is not clearly defined;Fourth,the identification criteria of special heavy loss and other special serious circumstances and two kinds of special aggravating circumstances are confused.The second part mainly analyzes the problems existing in the objective aspect of judicial application of this crime.As for cheating behavior,the method of cheating is classified into three aspects: the identity of the borrower,the purpose of the loan and the repayment ability.At the same time,the causal relationship between fraudulent behavior and obtaining loans is considered,and whether the victim institution falls into the wrong understanding due to fraudulent behavior and issues loans based on the wrong understanding is analyzed.For small loan companies,the academic circle has different opinions on whether they belong to other financial institutions,and clarifies the provisions of existing laws and documents on small loan companies.For heavy losses,the nature and attribute should be defined,and the time point and range of loss amount calculation should be analyzed on the basis of identifying it as the result of constituent elements.As for the two special aggravating circumstances,it should be made clear that they belong to the parallel relationship,they should have roughly equivalent infringement of legal interests,and should be based on the establishment of the basic offense as the prerequisite,but can not directly upgrade the punishment.The third part,based on the research of the second part,constructs specific applicable standards for the problems existing in the objective aspects of judicial application of this crime.First of all,the identification standard of cheating behavior is clear,and the essence of cheating means is grasped from the borrower’s identity,loan use and repayment ability.Cheating behavior and obtaining loans should have a causal relationship in criminal law.Secondly,it is clear that small loan companies do not belong to other financial institutions of this crime,and they can seek relief through civil means such as contract breach.Thirdly,the starting point and amount range of the loss identification should be reasonably grasped.The starting point should be when the public security organ files the case,but necessary measures and other legal means should be exhausted to limit the direct economic loss to the principal and interest of the loan,excluding the interest of the loan.Finally,it defines the applicable standards for the two kinds of particularly aggravating circumstances,refers to the relevant provisions on the condition of upgrading the legal penalty of the crime of illegal loan issuance,and determines that the special heavy loss of this crime should be more than 3 million yuan,other especially serious circumstances and special heavy loss have roughly equal legal interest infringement,and the amount of defrauded loans is more than 5 million yuan.At the same time,referring to the relevant laws and regulations of telecom and network fraud cases,it can also be identified as: the amount of fraud is not more than 5 million yuan,but reaches more than 80% of the amount of particularly heavy losses,and there are other serious circumstances,such as repeated fraud.