Study On The Legal Application Of The Offence Of Obtaining A Loan By Deception

The crime of obtaining a loan by deception is a new crime created after the amendment of the Criminal Law in 2006,which aims to punish the act of obtaining funds from a bank or other financial institution by deceitful means of falsifying facts or concealing the truth.After the Amendment to the Criminal Law(XI)deleted the incriminating circumstances of "other serious circumstances",the crime of obtaining a loan by deception refers to the act of obtaining a loan from a bank or other financial institution by deceitful means,causing significant losses to the bank or other financial institution.Based on the judgment cases,relevant legal norms and theoretical doctrines,it is found that the following problems exist in the specific application of the crime of obtaining loans by deception: the legal interests infringed by the crime of obtaining loans by deception are not clear;the criteria for determining the means of deception are not clear;the criteria for determining significant losses are not uniform;the characterization of the act of obtaining loans from microfinance companies is not clear.The above-mentioned problems have led to the prominent phenomenon of different sentences in the same case of loan fraud,making the judicial status quo deviate from the original legislative intent.This paper tries to put forward more specific and operable suggestions to improve the application of loan fraud through the collation and analysis of cases on the application of loan fraud in China,in order to enhance the accuracy of the application of loan fraud law.The thesis is divided into six parts:The introductory part mainly elaborates the topic and significance of the dissertation,the current status of research and review,research ideas and methods.The first chapter is a typical case and legal analysis of the crime of obtaining loans by deception.Through the collation and analysis of the relevant cases,the problems arising from the judicial application of the crime of obtaining loans by deception are summarized and concluded.The second chapter is the analysis of the legal benefits of the crime of obtaining loans by deception.After sorting out the current views on the protection of legal benefits of loan fraud,we try to discuss the rationality of the dual legal benefits of the crime of loan fraud against the state financial management order and the ownership of funds from the perspective of administrative offenders.The third chapter is the legal application and analysis of the crime of obtaining loans by deception.Based on the previous analysis of legal benefits,the current situation and causes of the three prominent problems are analyzed from the definition of deceptive means,the criteria for determining significant losses,and the characterization of fraudulent taking of loans from microfinance companies,respectively.The fourth chapter is the crime of fraudulent loan taking and the suggestions for judicial application improvement.In the dual perspective of legislation and justice,it is proposed that the scope of loss determination only includes the principal,but not the interest;the idea of combining the construction of interval delimitation and judicial interpretation to formulate the standard of significant loss amount is proposed;the time of loss determination is clearly defined as "when the case is filed";the microfinance company is not the object of regulation of the crime of fraudulent loan taking;in the If a staff member "knows" that the borrower uses deception to obtain a loan from a bank or other financial institution,the judgment of whether the bank or other financial institution is deceived should not distinguish between its duties and loan authority;the deception of providing real guarantee should consider the validity of the guarantee;the deception of fictitious loan use should consider the risk of use.The concluding part mainly makes a summary of the article as a whole and illustrates the research results of this paper.