Research On The Difficult Problem Of The Crime Of Fraudulent Loans

The Amendment(VI)to the Criminal Law,as adopted in 2006,added the crime of obtaining loans by deception,and the Criminal Law Amendment(XI)adjusted the threshold for the crime of obtaining loans by deleting the element of "other serious circumstances" and limiting the consideration to whether "significant damage is caused".The amendment to the Criminal Law(XI)adjusted the threshold for the crime of obtaining a loan by removing the element of "other aggravating circumstances" and limiting the consideration to whether it"causes significant damage.Article 22 of the Regulations of the Supreme People’s Procuratorate and the Ministry of Public Security on the Criteria for Filing and Prosecuting Criminal Cases under the Jurisdiction of the Public Security Organs(II),which came into effect on May 15,2022,provides that a case shall be filed and prosecuted if the fraudulent act of obtaining a loan causes direct economic loss to a bank or other financial institution in the amount of 500,000 yuan or more.However,in judicial practice,there are still many problems and controversies regarding the identification of this crime.Therefore,from current judicial practice and through the interpretation and analysis of the cases,this paper conducts an in-depth analysis and discussion of the controversial issues surrounding the protection of legal interests of the said crime and the identification of fraudulent acts,the scope of other financial institutions,and significant losses,and further advocates the construction of a mechanism for the criminalization of loan fraud,as being guided by the principle of the modesty of criminal law.This paper is mainly consisted of four parts as follows:The first part is about the protection of the legal interests of the crime of obtaining loans by deception.This chapter introduces the theories,including the "ownership","financial management order" and "loan order" theories,and concludes through comparison and analysis that the legal interest to be protected by the crime of obtaining loans by deception should be the "safety of the credit funds of the financial institutions",and explains the reasons.The second part is about the specific determination of "deception".Issues,such as the understanding of "deceptive means",whether the lender needs to fall into a wrong understanding,the treatment of "borrowing new to repay old" type of fraudulent loans and whether the "microfinance company" is the object of this crime,are the main analysis and argument.The author is of the opinion that the understanding of "deceptive means" should be determined with reference to the provisions on the crime of obtaining loans by deception;as to whether the lender needs to fall into a wrong understanding,four situations should be distinguished and discussed separately;as to whether the "microfinance company" belongs to "other financial institutions",before the adoption of a formal explanation,it is not appropriate to identify the act of fraudulently obtaining a loan from a microfinance company as the object of deception for the crime of obtaining loans by deception;as to the "borrowing new to repay old" type of fraudulent loans,on the surface,the borrower profits from it,but from the process of acquiring and disposing of the loan,it can not lead to the result that the borrower has substantially acquired the loan and therefore the loan should not be regarded as a completely new loan.The third part analyzes those aspects,including the meaning of "significant loss",the positioning of the system,the scope of coverage and the calculation of time points.Regarding the meaning of "significant loss",it can be defined as a loss only when a bank or other financial institution is unable to fully realize its creditor’s rights after exhausting all means.As for the scope of "significant loss",other losses such as interest should not be included.As for the determination of the time point of "significant loss",if the financial institution fails to settle the loan after taking all possible measures or all necessary legal procedures,the time point is calculated as the time when the case is filed by the public security organs,but the possibility of a conviction still exists if the loan funds are repaid before the trial.The fourth part summarizes the above analysis,regards the criminal law modesty and substantive judgment as the logic,and follows the procedural steps to construct the mechanism of incrimination from four aspects,namely the fraudulent acts and object,the purpose and use of loan,causal relationship,and significant loss.