Bank loans, including credit loans,MortgageAndSecured loanOther types of.It is still the main channel of the financing problem of our country enterprise solution.But SMEs small scale, weak anti risk ability, lack of mortgage and pledge, business activities, financial information opaque often have non openness and so on, these defects in the small and medium-sized enterprise innate, make the commercial bank examination and supervision costs and potential benefits of serious asymmetry, the bank for small and medium-sized enterprise risk status and lack of effective means of identification, thus greatly reduce the enthusiasm of bank lending in the small and medium-sized enterprises.Therefore, bank loans to small and medium-sized enterprises tend to have more stringent standards and procedures, for small and medium enterprises need to be weighed carefully after use.The risk of bank loans may bring, entrepreneurs must have a sober understanding. [case] Lending operations are not standardizedNearly lead to disaster in prison Mr. Wu, female entrepreneurs, the general manager of a A factory, B Co. ltd.. In 1995, August to October, Mr. Wu in the name of the A plant has from the city credit cooperatives loans 1050000 yuan, for enterprise development.After loan expires, Wu Moumou failed to repay.In December 30, 1995, Mr. Wu in the name of the A factory, and from city credit cooperatives loans 2350000 yuan, the loan principal and interest to A factory original under the agency of credit of 1050000 yuan loan principal, interest and Wu Moumou brother, sister under the credit cooperatives.The 2350000 yuan loan expires, Wu Moumou remain outstanding.In December 24, 1997, Wu Moumou also in the name of B company, using A plant 2214 square meters plant as collateral, the loan of 3100000 yuan signed contract with the city credit cooperatives, for the return of principal and interest 2350000 yuan of loans outstanding, the remaining funds for the development of enterprises.Both sides agreed on building mortgage loan contract, but the A factory and city credit cooperatives and not to the property right registration authority for registration of mortgage. In addition, in 1996, June to August, Mr. Wu to A factory name, two times in total loans from rural credit cooperatives RMB 2000000 yuan.Failed to repay the loan expires, Wu moumou.In December 8, 1997, Wu Moumou with A plant 1404 square meters plant and machinery and equipment as collateral, the loan contract signed 2510000 yuan loan re and rural credit cooperatives, with the principal and interest of loans repaid 2000000 yuan of new loans.Both sides agreed on building mortgage loan contract, the fact that A plant and rural credit cooperatives also not to the property right registration authority for the registration of mortgage. The 3100000 yuan and 2510000 yuan loans expired, the two credit cooperatives repeated pressure for provision, Wu Moumou did not repay the loan. In September 3, 1998, Mr. Wu will be building A factory and factory land (including the two agreed to loan collateral plant) pricing 4000000 yuan, transfer to C factory director wang.Mr. Wu and Wang Mou some verbal agreement, because part of plant A plant is used for mortgage credit cooperatives, so Wang is responsible for the principal and interest of loans to 5610000 yuan.But the two sides signed the transfer contract A factory "book", did not mention the parts of the building A plant has been mortgaged to the two credit cooperatives in fact, also did not specify a surname Wang to return the loan liability.A factory the actual transfer, Wu Moumou received $3000000 cash for Wang installment, not used to repay the loan. Two credit cooperatives in that a plant transfer situation, report to the city public security bureau.City Public Security Bureau think Wu Moumou suspected daikuanzhapianzui, investigation on Wu Moumou arrested, approval, city people's Procuratorate to the public prosecutor.City People's Procuratorate to the defendant wumou committed crime of fraud of the loan, the prosecution to the city intermediate people's court. The Municipal Intermediate People's Court: the defendant wumou knowing that the plant has been used for bank loans and the building sold, his behavior constituted a crime of fraud of the loan, and the amount involved is especially huge, shall be punished in accordance with the law.In accordance with the "Regulations of people's Republic of China criminal law," article 193rd, in October 26, 1999 the decision as follows: the defendant Wu Moumou crime of loan fraud, sentenced to ten years in prison, fined five hundred thousand yuan. After the verdict, Wu Moumou appeal, appeal to a higher people's court. Wu Moumou Appeal said: I will A factory to Wang sometime, will be handed over to the loan Wang, Wang took the repayment of loans by the.After the king does not admit that the one thing I had owing on the loan, the city intermediate people's court Wang XX, requesting the court finds that the invalid and Wang Mou some of the sales contracts between.While the city intermediate people's court that I signed with the bank loan mortgage contract because of not in the relevant administrative departments for registration, mortgage invalid; that I and Wang Mou signed sales contract valid, it rejected my request for litigation.Due to the higher people's Court upheld a trial City Intermediate People's court decision, just cause I can't repay the loan.I'm not taking loan illegally subjective intent, does not constitute the crime of fraud of the loan. The Provincial Higher People's court, confirmed Wu Moumou loan facts and transfer of A plant after the fact, but there is no evidence to support the claim that Wu Moumou Wang Mou that A plant has been part of the building mortgage to the two credit cooperatives and agreed to loan the fact generation.In addition to the principal and interest of bank loans owed by Mr. Wu in the second period has been by his brother to pay off all. The Provincial Higher People's court held that: the appellant Mr. Wu in the loan did not take fraudulent means, only sold in the mortgage process owing on the loan, if the mortgage is valid, the bank can take legal means to recover the loan collateral, will not cause cannot recover consequences; and Wu Moumou in mortgage transfer after it has also taken action, means to recover the collateral, mortgage contract is invalid due to the court found that in this case, the Wu Moumou appeal does not constitute fraud crime of loan to support the trial, the defendant wumou committed crime of fraud of the loan can not be established, decided in November 17, 2000: to withdraw the city intermediate people's Court of Wu Moumou crime of fraud crime of loan decision.Wu Moumou acquitted. [] legal analysis The case is about the case of bank loans, loans, loans for use focus on risk and return of the loan improper operation may bring to enterprises and entrepreneurs, especially the huge risk of criminal responsibility. The bank loan is a bank, credit cooperatives and other financial institutions, according to the borrower's future repayment ability, to a certain interest rate loans to meet the credit policy of the borrower, and agreed to a kind of economic behavior term return. Advantages, bank loans (a) low cost Comparison of various financing tools, to bank loans is one of the lowest cost.The bank loan interest rate is determined according to the different situation, general business loan interest rates higher than the small business loans preferential interest rates; corporate credit rating low mortgage rates may be higher than the high credit rating of corporate loans; long-term lending rates higher than short-term borrowing rates.Overall, the bank loan interest rate is still has a comparative advantage. (two) the stable funding Because banks are strong, capital adequacy, source of funds is relatively stable.The small and medium-sized enterprise loan application, as long as through the review of bank, signed with the bank loan contracts, and meet the conditions of bank loans, the general can always timely to provide funds to enterprises, to meet the financing needs of enterprises. Two, the bank loan defect (a) the high threshold Bank loans is very high demands on the enterprise scale, reputation, profitability, growth, quality, the general small and medium-sized enterprises to meet the requirements of.Usually require mortgage, small and medium-sized enterprises lack of real estate, machinery and equipment, products such as collateral or pledge and difficult to obtain bank identity, and intermediary assessment fees on small businesses is not a small cost.Although the government as much as possible the requirements of bank loans to SMEs, but requires commercial banks to provide loans to small and medium-sized enterprises in the loss of the conditions, can only be a matter of expediency, not long.Urban and rural credit cooperatives are the main force in the small and medium-sized enterprise loan, are unable to enjoy 15% of the loan interest rate.Restrictions on interest rates has weakened its ability to control risk, increase the medium-sized and small enterprises loans from financial institutions in difficulty.While lending to small and medium-sized enterprises marketing costs are too high, the state-owned commercial bank lending personnel responsibility, from another aspect of active constraints of the bank loans to small and medium sized enterprises. (two) complex procedures To a loan to the bank through the following steps: One is the loan application.Borrowers need loans, should agencies to the sponsoring bank or other banks apply directly.The borrower shall fill out include the loan amount, loan purpose, repayment ability and repayment of the loan application "" and provide the following information: (1) the borrower and guarantor basic situation; (2) the Department of finance or accounting (AUDIT) firms approved annual financial report, as well as the application before a period loan financial report; (3) correct the unreasonable occupied loans; (4) mortgage, pledge list and the disposition to mortgage, pledge and guarantee that people to agree to related documents guarantee; (5) the project proposal and feasibility report; (6) the lender that need to provide other relevant information. Two is the bank acceptance review. (1) the bank receiving the customer to submit "loan application" and related information, to verify the customer situation, control the bank lending conditions, determining whether it with the establishment of credit relationship conditions. (2) of the borrower's credit rating.According to the borrower's leadership quality, economic strength, capital structure, performance, operating efficiency and development prospects and other factors, assessment of the borrower's credit rating.Rating can be carried out independently by the lender, internal control, can also be carried out by an appraisal institution approved by the authorities.(3) the loan investigation.The Borrower Lender accepts the application, investigation and legitimacy, security, profitability and so on the borrower's credit rating and the loan, mortgage, pledge, verify the guarantor, determination of loan risk degree.Review staff to provide investigators data verification, evaluation, measurementLoan riskDegree, put forward opinions, according to the provisions of authority for approval. The three is signed loan contract.If the bank to apply for loans review that borrowers meet loan conditions, agreed to loan, signed the "loan contract with the borrower".Loan contract shall stipulate the loan type, purpose, amount, interest rate, term, repayment methods, the debit and credit rights, obligations, liabilities for breach of contract and other matters deemed necessary by the parties. Four is the loans.The lender according to stipulated in the loan contract on loans.Lenders do not schedule according to the contract issuing loans, it shall pay breach of contract damages.The borrower does not contract with the paragraph, it shall pay breach of contract damages. The five is the loan after the inspection.Loans for borrowers, lenders and borrowers loan implementation of contract management of the investigation and inspection. The six is to repay the loan.The borrower shall, in accordance with the loan contract shall repay the principal and interest of loans in full and on time.Before the lender in short-term loans before the due date, 1 weeks long term loan due in 1 months, to the borrower sends the debt service notice; the borrower shall timely funding, repay the principal and interest on time.The lender late loans to be issued collection notice, do the overdue loan interest him.The lender of the agreed period of the loan contract cannot be repaid loans, should be in accordance with the provisions of penalty interest; not returned or cannot implement the servicing matters, it shall urge returned or prosecuted.The early return of loan borrowers, and lenders should be consultation. The whole process of loan approval time is long, conditions, and small business loan demand "short, fast, the spirit of" not agree, restricting the small and medium sized enterprises from bank loans enthusiasm. (three) short term and credit limit Most of small and medium-sized enterprises need short-term loans, and the amount is small.But sometimes there is a need for strategic, a large amount of long-term borrowing, at this time, small and medium-sized enterprises difficult to obtain a long period, large amount of loans as large enterprises, seriously restricted the development of small and medium-sized enterprise transformation, do poineering work the two times. Three, the risk of bank loans (a) the risk in respect of civil liability Because of the strict requirement of legal and credit policy, banks in lending to small and medium-sized enterprises often require the borrower to provide a guaranty.In practice, the collateral the medium and small enterprises is generally all their management for the housing and land use rights, or for operating equipment.Mortgage is a mortgage right may direct the disposal of collateral and the right of first refusal, that is to say, once the loan of small and medium-sized enterprises can not repay on time, the bank as mortgagee can request it for mortgage housing, land use right or equipment sale or auction, to obtain priority to repay bank loans money.In practice, banks tend to be passed to the court, and finally by the court presided over the sale or auction enterprise mortgage assets.One can imagine, a small and medium-sized enterprise if it is so that the exercise of a mortgage, and lost property and equipment and other important assets business use, not hurt vitality greatly, is the crowning calamity.For small and medium-sized enterprises, the result is likely to be shutting down collapse, make entrepreneur efforts before all one's efforts wasted. (two) the risk of criminal responsibility The risk in respect of civil liability, is the risk of poor business or fails to bring, entrepreneurs mainly bear is the loss of assets.But if the enterprise loan, loan and repay the loan use improper operation, the suspected crime of swindling loan, entrepreneurs are therefore shall be investigated for criminal responsibility, the risk of bank loans to bring too big.In the case of Wu Moumou, not for the loan formalities complete, more casual in repayment arrangements, was accused of loan fraud, the first trial convicted, sentenced to 10 years in prison, a fine of 500000 yuan.How serious the consequences!Although the adjudged not guilty, but she lost their personal freedom in more than a year, is irreparable, the other suffered economic loss is one can imagine. First, what is the crime of fraud of the loan? Article 193rd of the criminal law, the crime of loan fraud, refers to the illegal possession for the purpose of making money, project introduction, false reasons, using false economic contracts, the use of false documents, using false property right certificates, beyond the collateral value re guarantee or by other methods of fraud, banks or other financial institutions loans, large amount of behavior.According to the regulations, constitute the crime of fraud of the loan must meet the following conditions: 1 an actor must have the "purpose of illegal possession, that there will be a bank or other financial institutions loans illegally take forcible possession of, do not want to return to.As for the illegal possession loans for personal enjoyment or motivation for charitable donations, does not affect the establishment of this crime.If the behavior of people in order to solve production and operation of the shortage of funds needed, to bank or other financial institutions to apply for the loan process, the lie, the use of deception, but will try various devices to repay the loan, the purpose is not to illegal possession loans, do not constitute a crime. 2 the behavior must swindle banks or other financial institutions lending behavior.Criminal Law lists the specific behavior of five types of loan fraud: (1) "made up the introduction of funds, project false reasons", which mainly refers to the act of making simply does not exist, or is not real so-called will produce good social and economic benefits of investment projects, or to introduce foreign capital need funds and other reasons; (2) "using false economic contracts", mainly refers to the act of using false export contract or any other alleged in the short term to produce good economic benefit of the contract, to obtain loans; (3) "the use of false documents", mainly refers to the use of forged, altered or false content bank deposit certificates, company or financial institution guarantee, payment certificate and other documents needed to banks or other financial institutions to apply for loans; (4) "the use of false certificates of property rights or duplicate guarantee" beyond the value of the mortgaged property, mainly refers to the use of forged, altered can prove that the behavior person to the housing, equipment and other immovable property or car, money, immediately a bill with a real estate ownership cut files or exceeds the value of the mortgaged property repeated security; (5) "loan" to other methods of fraud, such as forged unit official seal, seal for loans, or to leave money for the mortgage loan etc.. 3 fraud loans to large amount, to constitute a crime, it is important to distinguish crime and non crime boundary.The criminal starting point is ten thousand yuan. According to the provisions of the criminal law, the large amount of loan fraud, is less than five years imprisonment or criminal detention, a fine of twenty thousand yuan two hundred thousand yuan fine; if the amount involved is huge or other serious circumstances, five to ten years in prison, a fine of fifty thousand yuan five hundred thousand yuan fine; if the amount involved is especially huge or other especially serious circumstances, department for more than ten years of fixed-term imprisonment or life imprisonment, fined fifty thousand yuan five hundred thousand yuan fine or confiscation of property. Second, avoid being considered points of loan fraud First of all, whether before or after the bank loans, the subjective cannot have it take forcible possession of thoughts and behavior, not to return.Secondly, when applying for loans, to avoid false statement to the banks, to provide false information, make use of the loans do not exist and other practices, or even though loans is used in the operation of the business, but once the repayment is not easy, suspected of fraud of the loan.Again, avoid by all means is the diversion of loans, such as for entrepreneurs personal investment, or if not owing on the loan, is also very easy to suspicion of fraud of the loan.And then, the relevant formalities should complete, as in the case of Wu Moumou, if her two loans are the actual mortgage procedures, or she and Wang Mou a A factory transfer contract stated in A plant and machinery and equipment have mortgage credit cooperatives in fact, the loan by Wang is responsible for the return of the agreement, there is no later charged loan fraud consequences.Finally, if the enterprise management, loan cannot be repaid, then entrepreneurs do not have to hide, with capital of escaping behavior.At this time, should actively in consultation with the bank loans to the matters, or partial repayment behavior, to show that the attempt to oneself is not on the subjective illegal possession of bank loans. [] prevention strategies The banks won't lend money to small and medium-sized enterprises, therefore, enterprises in the application to the bank loan, should first examine their financial structure is sound, measure the credit record and credit conditions, in order to grasp money tips. First, enterprises should improve their own quality At present, the small and medium-sized private enterprises of small scale, technology and equipment is simple, less product variety, quality to be improved, the market risk is relatively large.A considerable part of the enterprise existence system chaos, weak management, management issues such as blind.Business decision makers in some small and medium-sized private enterprises own quality is not high, the lack of business objectives clear, without its own unique enterprise things emerge in an endless stream, low-level redundant construction, the product quality is inferior, the enterprise is very difficult to gain a foothold in the market; also some enterprise's financial system is not perfect.And so, small and medium-sized enterprises should improve their own quality, such as improving the technology content of products, product quality assurance; establish scientific financial management system, to create a good financial basis, establish and improve the modern enterprise system. Two, establish a good corporate reputation Small and medium-sized enterprises should improve their own quality, establish a loyal and trustworthy market awareness and good corporate reputation, access to financial institutions, trust and recognition.Adhere to the "have also borrowed, then it is not difficult to use" credit standards.The small and medium-sized enterprise can also try to form a "credit union", "joint guarantee", enhance the reputation of the "Baotuan". Three, dealing with the banks should pay attention to the basic skills (a) to understand the operating characteristics of Bank: bank big customers, some do small business, according to bank characteristics, choose the bank, can get preferential and facilitate more. (two) the bank service: loans, can contact more and the selected bank, using the new business bank.Even if it's just on hydropower, gas, telephone and other expenses, all contribute to the creation of business performance. (three) read the loans: loans, can be obtained from the bank application blank, carefully read, understand in advance, early prepare related documents. (four) than three goods does not suffer: several banks, perhaps in the business under the pressure of competition, can obtain more favorable terms, or in a reasonable range, moderate demand to adjust the rate and duration of. (five) to the bank security: contact with the bank, for the bank to have a sense of security, we must fully understand the situation of the financial market, emerging professional knowledge, and inform the use of the loan is clear, to obtain the confidence of the banks. (six) to establish a good relationship with the bank, which is the key to the cooperation with the Bank of small and medium enterprises to get.Enterprises should set up a good image, has a good daily financial management system, financial accounting standard, flexible liquidity, strict financial management, at the same time, improve production efficiency, set up a good reputation in a bank in mind. Four, to avoid the risk of bank loans of Risk may bring to enterprises and entrepreneurs to bank loans, especially the risk of criminal responsibility, should have a full understanding.Bank loans may bring development to enterprises, but also with risk.To apply for bank loans to be doing, is estimated to be on the repayment ability of the practical, avoid not owing on the loan and lead to important business assets to be disposed of.To abandon to obtain bank loans and fling caution to the winds practices, many development business opportunities, but if the entrepreneurs because the loan fraud crime, it may never have the opportunity to stage a comeback.