Is the loan fraud a traditional robbery fraud case?

The crime of defrauding loans is a new crime after the crime of "transferring loans at high interest" in Article 175 of the Criminal Law. It refers to the act of obtaining loans from banks or other financial institutions by deception, causing heavy losses to banks or other financial institutions or other serious circumstances. According to the "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing Criminal Cases under the Jurisdiction of Public Security Organs (II)" promulgated by the Supreme People's Procuratorate and the Ministry of Public Security in May 20 10, if the following circumstances are involved, the case should be filed for prosecution: "(1) Obtaining a loan of more than one million yuan by deception; (two) defrauding loans, causing direct economic losses of more than 200 thousand yuan to banks or other financial institutions; (three) although not up to the above amount standard, but repeatedly defrauded the loan; (4) Causing heavy losses to banks or other financial institutions or having other serious circumstances. " Fixed-term imprisonment of not more than three years, criminal detention, and a fine or a single fine with a statutory punishment range of "relatively large amount"; "Huge amount" shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined. The crime of loan fraud is "relatively large" and shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine of not less than 20,000 yuan but not more than 200,000 yuan.

The crime of loan fraud refers to the act of fabricating false reasons such as introducing funds and projects for the purpose of illegal possession, using false contracts and false documents, using false property rights certificates as guarantees, repeatedly guaranteeing more than the value of collateral, or defrauding banks or other financial institutions of loans in other ways, with a large amount. According to the provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the standards for filing and prosecuting criminal cases under the jurisdiction of public security organs, loan fraud of more than 20,000 yuan should be filed for prosecution. The range of statutory punishment is "relatively large": fixed-term imprisonment of not more than five years or criminal detention, and a fine of not less than 20,000 yuan but not more than 200,000 yuan; "Huge amount" is fixed-term imprisonment of not less than five years but not more than ten years, and a fine of not less than 50,000 yuan but not more than 500,000 yuan; "The amount is especially huge" is fixed-term imprisonment of not less than 10 years or life imprisonment, and a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property.

Judging from the constitution of the crime, these two charges are similar, so we should pay attention to the differences in judicial practice to avoid confusion:

(a) the same object of crime

They are all credit funds from banks or other financial institutions.

(2) The main elements are the same.

All natural persons and units who have reached the age of criminal responsibility and have the ability of criminal responsibility constitute, and the staff of banks or other financial institutions collude with the perpetrators of the two crimes to provide help, or they can become criminals.

(3) the objective factors are the same

The acts of the two crimes may be fabricating false reasons such as introducing funds, projects, and doing business, using false contracts, false documents, false property rights certificates, etc. as guarantees, or repeating guarantees beyond the value of collateral and other fictional facts and methods of concealing the truth.

(d) similarity of object elements

The objects of both crimes are complex objects. The main object of the crime of defrauding loans is the financial management order, followed by the property rights of banks or other financial institutions (including ownership, use and disposal). The main object of the crime of loan fraud is the loan ownership of banks or other financial institutions, followed by the national financial management system.

Therefore, how to distinguish the two crimes depends on the subjective elements. Although the means adopted by the two crimes are similar, their subjective purposes are different. The crime of fraudulently obtaining a loan is not aimed at illegal possession, but only when the loan conditions are not met, the loan is obtained by illegal means and there is a willingness to return it. The subjective intention of the crime of loan fraud is to defraud the loan by illegal means and illegally possess it.

To judge whether the actor subjectively aims at illegal possession, we should not only look at the means of obtaining loans, but also look at the objective performance of how to deal with loans after obtaining loans. If the actor does not use the loan according to the purpose of the loan, but uses the loan for illegal activities or high-risk investments, squanders the loan, absconds with the money, hides the whereabouts of the loan, refuses to return the loan after it expires, and so on. It should be regarded as illegal possession, and as long as it reaches a large amount, it constitutes the crime of loan fraud. On the other hand, the actor did not show the above behavior, but only obtained the loan by illegal means. Those who reach the legal amount standard or the plot standard shall be deemed as the crime of defrauding loans.

Whether it constitutes "illegal possession" or not, the Summary of the National Symposium on Hearing 52 Financial Crime Cases issued by the Supreme People's Court 2001stipulates in detail the determination of the purpose of illegal possession in the crime of financial fraud. According to judicial practice, if the actor illegally obtains funds through fraud, resulting in a large amount of funds that cannot be returned, it can be considered as one of the following circumstances. (2) absconding after illegally obtaining funds; (3) defrauding funds at will; (four) the use of fraudulent funds for illegal and criminal activities; (5) Evading, transferring funds or hiding property to avoid returning funds; (6) Concealing or destroying accounts, or making or closing false accounts to avoid withdrawing funds; (seven) other illegal possession of funds and refused to return. "

The crime of defrauding loans and the crime of loan fraud may also be transformed into each other, even in the nature of the case, criminal may be transformed into civil, and civil may be transformed into criminal. The Summary of the Symposium on the Trial of Financial Crimes by National Courts stipulates that "if there is evidence to prove that the perpetrator does not have the purpose of illegal possession, it cannot be punished as financial fraud just because the property cannot be returned. In addition, it is required to strictly distinguish between loan fraud and loan disputes. Legally obtained loans, which are not used for specified purposes and have not been returned at maturity, cannot be convicted and punished for loan fraud; If there is evidence to prove that the perpetrator did not have the purpose of illegal possession, obtained the loan by deception because he did not have the loan conditions, and was able to repay the loan after the incident, or could not return it due to reasons beyond his will such as poor management, fraud, market risk, etc. Instead of being convicted and punished for loan fraud. " If the actor's original intention is to illegally occupy the loan, but after obtaining the loan, he will use it for normal production and business activities or be influenced by other good factors, and his original intention has changed, the loan will be returned at maturity. If this situation reaches the standard of the amount or circumstances of criminal responsibility, it constitutes the crime of defrauding loans, not the standard of criminal responsibility, and it belongs to the nature of civil fraud. On the other hand, the actor had no intention of illegal possession before obtaining the loan, but after obtaining the loan, the objective behavior showed that he was subjectively unwilling to return the loan and did not return it after the loan expired. If the amount reaches a large amount, it should also be recognized as loan fraud.