Study On "Significant Loss" In The Crime Of Defrauding Loans

The Amendment to the Criminal Law(11)deleted the provision of "other serious circumstances" for the crime of defrauding loans,and only retained the criterion of "significant loss".However,due to the lack of clear and specific regulations,there have long been great differences in academic circles and judicial practice on how to understand "significant loss".Specifying "significant loss" in theory can provide a reference for judicial practice,promote judicial organs to form a unified understanding when adjudicating,avoid the situation of different judgments in the same case,and better realize judicial justice.This paper first starts from the current theory of "significant loss" in the academic circles,then conducts an in-depth analysis based on the existing problems in judicial practice,and finally provides some ideas for the determination of "significant loss".The first part of the article sorts out the views of the academic community on "significant losses".The legal benefits have a guiding effect on the interpretation of the constituent elements of the crime,and clarify that the legal benefits of this crime can analyze the position of "significant loss" in the composition of the crime,and then provide a theoretical basis for the specific determination of "significant loss".Regarding the protection of this crime,there are three propositions: "financial management order theory","credit fund ownership theory" and "credit fund security theory";Regarding the constitutive status of the crime of "significant loss",there are mainly two views: "the theory of constituent elements and results" and the "objective punishment conditions";The dispute over the specific content of "significant loss" mainly revolves around the scope of the amount of "significant loss" and the time node for determining "significant loss".The second part of the article summarizes the problems existing in the determination of "significant loss" in current judicial practice.First,different courts have an inconsistent understanding of the status of "significant loss" in the crime of defrauding loans;Some courts hold that "significant loss" is the result of constituent elements,while others hold that "significant loss" is an objective punishment condition.Second,different courts have inconsistent judgments on whether "significant loss" includes the guarantor’s loss and whether interest should be included in calculating the amount of "significant loss".Third,the time nodes for determining "significant loss" are not uniform,and in practice there are three practices: the loan maturity date,when the public security organ files a case,and when the court pronounces a judgment at the first instance.Fourth,different courts have inconsistent judgments on whether the fault of financial institutions affects "significant losses".The third part of the article first clarifies the legal benefits of the protection of this crime,and believes that the legal benefits of the protection of this crime are the safety of credit funds of financial institutions "Significant loss" exists as a constituent element and cannot be an objective penalty condition.As for the connotation of "significant loss",this article argues that "significant loss" refers to the direct economic loss suffered by the financial institution that issued the loan,the loss of the guarantor is not a "significant loss",the loss of a microfinance company should be classified as a "significant loss",the determination of "significant loss" is affected by the fault of the staff of the financial institution,and the guarantee provided by the actor may also be considered to cause "significant loss" to the bank or other financial institution.For the starting amount of "significant loss",the starting point should be 500,000 yuan,and the amount of loss should only be limited to the principal,and should not be calculated cumulatively when the actor borrows a new loan to repay the old loan.The time point for determining "significant loss" shall be based on the time the public security organs file the case.