The crime of loan swindling and swindles the loan crime conviction and sentencing analysis

    One, 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, duplicate guarantee exceeding or by other methods of fraud, banks or other financial institutions, the loan amount big behavior. The crime of illegal possession for the purpose, objective aspect to deception for loans to financial institutions, the large amount of behavior. The subject is only natural person, the unit can not constitute a crime, the violation of the object is the ownership of double object order management and financial institutions of financial institutions. The sentencing, loan fraud1Million yuan of above, belong to "large amount", less than five years in prison;Loan fraud5Million yuan of above, belong to "huge amount", five to ten years in prison;Loan fraud20Million yuan of above, belong to "huge amount", more than ten years to life imprisonment.

    1, "criminal law" the 193rd in any of the following circumstances, for the purpose of illegal possession, defraud the bank or other financial institution loans, the amount is relatively large, is less than five years imprisonment or criminal detention, a fine of twenty thousand yuan two hundred thousand yuan fine; the amount of large or if the circumstances are serious, department for more than five years less than ten years imprisonment, fined 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:

   (a) make up the introduction of funds, project false reasons;

   (two) using false economic contracts;

(three) using false documents;

(four) using false property right certificates or duplicate guarantee exceeding;

　 (five) defrauding loans by other means.

　 2, loan fraud crime

(an object)

The direct object of this crime against the financial institution is the ownership of the loan.

Objective (two)

　 The objective aspect of this crime is the fraud of the loan to banks or other financial institutions, large amount of behavior. Specific ways: (this crime1The introduction of funds, project) fabricated false reasons of loan fraud. Is mainly fabricated simply does not exist or inconsistent with the actual so-called will produce good social and economic benefits of investment projects, the latter to introduce foreign capital to matching funds by loan fraud behavior. (2) using false economic contracts of loan fraud. Is mainly refers to the fabricated, using false export contracts or other short-term can produce good economic benefit of the economic contract, loan behavior. (3) using false documents to loan fraud. Is mainly refers to invent, prove, using false bank deposit company or financial institution guarantee, that is, the need to apply for loans in the file, cheat loan behavior. (4) using false property right certificates or beyond the duplicate guarantee loan fraud. Is mainly refers to the fabricated, using false proof, prove that the perpetrator of the housing property or car, currency, all files with the ownership of the property, defrauding loan behavior. (5) defrauding loans by other methods of behavior. That is in addition to the loan fraud behavior of loan behavior. Such as forged unit official seal, seal for loans, as collateral for loans to counterfeit currency, and borrowing by deception refused to back the loan and so on, the implementation of one of these loan fraud behavior, and the larger amount.

(three), the main elements

The subject of this crime is a natural person, entity does not constitute the main body of this crime.

(four), subjective elements

The subjective aspects of the crime is intentional, but also has the purpose of illegal possession. That the perpetrators of fraud of the loan to banks or other financial institutions, the purpose is to put fraud loans take forcible possession of or all the others. If cheating method using the process behavior is in to the bank or other financial institutions loans, but not for illegal possession, but otherwise he, does not constitute a crime.

    Two, swindles the loan crime specification for "cheating loan, bills acceptance, financial coupons crime", is the criminal law amendment six additional charge, criminal law amendment(Six)Regulations, to cheating loan, bills acceptance bank or other financial institutions, credit, letter of guarantee, to the bank or other financial institutions caused heavy losses or other serious circumstances, at3Years in prison or detention, or be fined;To the bank or other financial institutions especially heavy losses are caused or other especially serious circumstances, at3Years or above7Years in prison, fined. Units committing the crime mentioned in the preceding paragraph, it shall be fined, and the person in charge directly responsible and other persons directly responsible shall be punished in accordance with the provisions of the preceding paragraph. Swindles the loan crime the crime is not required for the purpose of illegal possession, the objective aspect of the performance of the cheating loan, bills acceptance bank or other financial institutions, credit, letter of guarantee. The applicant has the fictional facts, hiding the truth of the plot in the application of credit funds or credit process, or provide false evidence, false materials, or no use of credit funds in accordance with the application of the commitment to use, can be considered to be deceived. The subject is the natural person and unit with the age of criminal responsibility, violated object is the order of financial management. Sentencing ", cause significant loss" or "other serious circumstances" to the financial institutions, office3Years in prison or detention, "significant loss" no clear standards, in practice, usually caused by high cost loans to recover or cheating, fraud or bad times for cheating punished, again for scenarios such as "other serious circumstances";"Particularly serious" or "if the circumstances are especially serious", in practice, general to defraud the amount involved is especially huge social impact, particularly bad, serious loss of reputation to the financial institution or financial loss, three to seven years in prison.

    The standards of prosecution case swindles the loan crime

    The Supreme People's Procuratorate, the public security department2010Years5Month issued "about the public security organs under the jurisdiction of the criminal prosecution standard(Two)"(Hereinafter referred to as the "provisions(Two)")The provisions of article twenty-seventh, who got by means of cheating loan in the amount of one million yuan, or to obtain loans to deception to banks or other financial institutions caused direct economic losses in the amount of two hundred thousand yuan, or it does not meet the above criteria, but the number of deception to obtain loans, and other financial mechanism of causing significant losses or other serious circumstances(The above referred to as the "four kinds of situations"), shall be filed for investigation and prosecution. Prior to this, the Ministry of Public Security Bureau has taken the lead in2009Years made "reply" about the prosecution standard filing swindles the loan crime and the crime of illegal loans, is also consistent with the basic spirit and the above provisions. But should pay attention to the interpretation of the retroactivity. On the criminal judicial interpretation of the effect of time, "two high" "on the application of criminal judicial interpretation time effectiveness of regulations" established "no old from new from the old, old and light punishment" approach, and provisions for the prior to the implementation of judicial interpretation in time if no error will not change.

    The author thinks, that the crime, the crime should be filed for investigation and prosecution in accordance with the crime law combined with comprehensive analysis, and cannot be understood in isolation "provisions(Two)"Twenty-seventh, otherwise, the deviation of the crime of understanding will. For example, article 175th of the criminal law of the crime must be clearly defined, to the bank or other financial institution has caused heavy losses or other serious circumstances of the act, which is a necessary condition for the constitution of this crime. Isolation and analysis of the provisions "(Two)"Twenty-seventh, it seems as long as the cheating loan one million yuan, or for many times to cheating loan, regardless of whether or not to banks or other financial institutions caused significant loss or has other serious circumstances, can be convicted. In fact is not true. Through the investigation, if it is found that the behavior people for loans one million yuan, or more for loans, and cause the actual economic losses to the bank or other financial institutions20Million yuan, or not to banks or other financial institutions caused heavy losses, but use the loans for illegal activities, if the circumstances are serious, shall be investigated for criminal responsibility by the self. However, if after file found, people only Piandai behavior in the amount of one million yuan, or multiple Piandai, but not to banks or other financial institutions caused by the actual loss, also did not use the loan for any illegal activities, it is obvious to the general market for breach of trust, did not cause actual harm to the financial order, did not violate Article 175th of the criminal law of the crime, of course should not be investigated for criminal responsibility.

    The major difference between the three, the loan fraud and swindles the loan crime is:

    1Loan fraud crime subjective requirements "for the purpose of illegal possession", swindles the loan crime subjective aspect no such requirement, as long as the act of using deception loans of financial institutions, to form the;

    2The object of fraud crime of loan against the double objects, namely, the order of financial management and financial institutions of property ownership, object and swindles the loan crime infringes is only the order of financial management;

    3Sentencing, the crime of loan swindling a maximum penalty of life imprisonment, swindles the loan crime maximum sentence of seven years in prison,

    If the actor has the illegal possession of loans to banks or other financial institutions to subjectively, constitute the crime of fraud of the loan. If the behavior of people in order to solve financial difficulties, the banks or other financial institutions to apply for a loan process uses deception, but after the repayment behavior or repayment willingness, constitute the crime of loan fraud.

    Four, people "illegal possession as the purpose"

    That is the purpose of illegal possession: the Supreme People's court in2001Years1Month21Promulgated the "national courts in cases of financial crimes forum identified for the purpose of illegal possession" a summary of financial fraud in the detailed provisions, according to the judicial practice, for the behavior of illegally obtained money by fraudulent means, resulting in a large amount of funds can not be returned, and has one of the following circumstances, can be identified as illegal the purpose of possession:1.Knowing that there is no return ability and a lot to defraud money2.Illegally obtained money and run3.Profligate defraud money4.The use of defrauding money for illegal and criminal activities5.Flee, funds transfer, conceal the property, to escape the return of funds6.Concealment, destruction or make false accounts, production, false failures, to escape the return of funds7.Other acts of illegal possession of funds, refusing to return. At the same time, the "summary" the prudential requirements for the purpose of illegal possession, "for there is evidence to prove that the actor does not have the purpose of illegal possession, not only to the property can not be returned to the financial fraud punishment. Another requirement strictly distinguish loan fraud and loan dispute, legally acquired for loans, did not use the loan in accordance with the provisions of the use of expired, no return of the loan, the loan can not be convicted of the crime of fraud punishment;For there is evidence that the behavior people don't have the purpose of illegal possession, because does not have the conditions of the loan taken deception to obtain loans, the ability to meet its obligations, or the inability to or because of causes beyond volition, as a result of mismanagement, cheated, market risk, should not be to the crime of loan fraud conviction punishment. While2006The amendments to the criminal law(Six)Add "swindles the loan crime", to make up for the judicial practice that the "for the purpose of illegal possession" more difficult, resulting in society on a large number of bank loan behavior is difficult to be investigated for criminal responsibility, and as the civil loan disputes. The establishment of swindles the loan crime, reduce the blow for bank loans threshold, in order to guarantee bank credit assets to provide effective legal protection.