| In recent years,the crime of fraudulently obtaining loans has been criticized by the academic circle for its vague interests,simple description of the crime and serious tendency of application.Although the legislature has modified this crime,it is still controversial in judicial application due to its unclear expression.By combing the existing theories and viewpoints of the academic and practical circles,this paper analyzes the controversial issues involved in the crime of loan fraud on this basis.The first chapter is the dispute about the benefit of the law of loan fraud.Starting from the connotation and connection of the interest of this crime protection law,through the reflection of the theory of financial order,the theory of ownership and the theory of double legal interest,we advocate the theory of credit capital security as the legal interest of this crime protection.Only the behavior of loan fraud that causes substantial damage to the credit capital security of banks and other financial institutions should be regulated by this crime.The second chapter is whether small loan companies can be the object of this crime.The difference between positive and negative conclusions lies in whether small loan companies belong to "other financial institutions" in this crime.However,whether based on the protection law interests of this crime or substantive investigation,the behavior of defrauding small loan companies should be included in the regulation scope of this crime,so as to achieve the requirement of equal protection.The third chapter is the debate about the practice of the crime of defrauding loans.The identification of "cheating means" of this crime should meet the formal standard and the substantive standard,the formal standard is the existence of deception in the key loan application materials,the substantive standard is the existence of causal relationship between the doer’s "deception" and "acquisition".In view of the cases where the lender uses fraudulent means to obtain loans but provides effective guarantee,the disputes involved should be classified to distinguish and make a decision.The fourth chapter is the debate on the result of the crime of loan fraud.The result requirement of the crime is "great loss" not "acquisition of loan",so it doesn’t fit with the judicial practice of our country and "great loss" as an objective punishment condition.The range of loss amount only refers to the loan principal,interest and other indirect economic losses shall not be included,and the interest already returned shall not be deducted from the loss amount.The time node for calculating the amount of heavy losses shall be when the public security organ files a case for investigation... |
