In 1.2023, more than 500,000 yuan should be prosecuted in the second standard for filing a case, and less than 500,000 yuan does not constitute a "significant loss".
Two. Calculation of "significant losses": limited to direct economic losses.
Three, the loss must have the characteristics of "creditor's rights can not be realized"
Four. It is not appropriate to use the conclusion of "non-performing loans" issued by financial institutions to identify "causing significant losses"
5. How to identify "particularly significant losses"?
Concluding remarks
upper guide bearing
The crime of defrauding loans is an additional crime in the Criminal Law Amendment (VI) which came into effect on June 29th, 2006. At that time, it was stipulated that there were two kinds of crimes of defrauding bank loans, one was to cause great losses to banks; Second, there are other serious circumstances. Two situations are optional, and one of them constitutes a crime.
1 03010 (implemented on March, 202654381day) revised the constitution of the crime of defrauding loans, changed two incriminating situations into one, and cancelled the incriminating situation of "other serious circumstances". Only if it causes "great losses" to financial institutions can it constitute the crime of defrauding loans.
After the amendment, defrauding banks or other financial institutions of loans, acceptance bills, letters of credit, guarantees and other criminal acts constitutes a crime. Whoever uses deception to cause heavy losses to banks or other financial institutions shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or only be fined; Whoever causes particularly heavy losses to banks or other financial institutions or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. (Article 175- 1 of the Criminal Law Amendment (XI))
It can be seen that the identification of "significant losses" caused by fraudulent means of the perpetrator is directly related to whether it constitutes a crime. In addition, the size of the loss and whether it caused "particularly heavy losses" determined the level of punishment, whether it was less than 3 years or 3-7 years.
In Criminal Law 1.2023, more than 500,000 yuan should be prosecuted, and less than 500,000 yuan does not constitute a "significant loss".
The Supreme People's Procuratorate and the Ministry of Public Security's Standards for Filing a Case II (hereinafter referred to as "Provisions on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs II" in May 2023) stipulate that the standard for filing and prosecuting the crime of defrauding loans is more than 500,000 yuan. Article 22 In the case of fraudulently obtaining loans, bill acceptances and financial bills (Article 175-1 of the Criminal Law), those who fraudulently obtain loans, bill acceptances, letters of credit, letters of guarantee, etc. and defraud funds from banks or other financial institutions by fraudulent means, thus causing direct economic losses of more than 500,000 yuan to banks or other financial institutions, shall file a case for prosecution.
The above 2022 Record Standard II is a normative document. At present, there is no formal judicial interpretation of the standard of "significant loss".
On June 2, 2065438 1 day, the Supreme People's Court issued "Standard 2 for Filing a Case" (Fa Fa Fa [2065438+00] No.22), which stated:1. There is no provision for conviction and sentencing standards of related economic crimes in the Supreme People's Court. When trying economic crime cases, the people's courts may refer to the provisions of the Notice of the Supreme People's Procuratorate and the Ministry of Public Security on the Criteria for the Filing of Criminal Cases under the Jurisdiction of Public Security Organs (II). Second, the people's courts at all levels in the process of referring to the application of the "Standard II", if they think that the relevant provisions of the "Standard II" can not meet the needs of the trial of a case, they should combine the specific circumstances of the case, adjust measures to local conditions, carefully handle the legal application and policy grasp of the case, and strive for better social effects.
Before the introduction of formal judicial interpretation, the threshold of 500,000 direct economic losses determined by Standard II in 2023 was the starting point of "significant losses" in the crime of defrauding loans.
In other words, if you don't reach the threshold of 500,000 yuan, you won't be prosecuted.
Two. Calculation of "significant losses": limited to direct economic losses.
In order to win the result of no prosecution, criminal lawyers need to calculate the loss first. In 2022, the "Filing Standard II" stipulated that the loss refers to the "direct economic loss" with an amount of more than 500,000 yuan. Does the loss amount include unpaid interest? Has the interest paid been deducted? This is the deposit, handling fee, etc. Included?
This point is controversial and needs to be further clarified in judicial interpretation. There are different opinions at present. Theoretically, some people think that "loss" refers to the outstanding loan principal, excluding interest, deposits and liquidated damages charged by financial institutions. The deposit and interest paid shall be deducted from the loss amount. The second view is that "loss" includes interest. The second standard for filing a case issued by Shandong in 2020 stipulates that "the direct economic losses caused to banks or other financial institutions by the reference opinions of the Supreme People's Procuratorate and the Ministry of Public Security on handling the crime of defrauding loans shall be limited to the overdue loan principal when the investigation organ files the case, and the deposits paid to banks or other financial institutions shall be deducted".
There are also some cases in our department, such as Ren Huo and Wang Bo. For the crime of defrauding loans in the first instance, only the principal is calculated and the interest generated is deducted when accepting bills of exchange and financial bills [(2021) No.38 No.0830 Article 38]. Others calculate the overdue loan principal when the investigation organ files the case, and the interest returned before filing the case does not cover the principal. For example, Shandong Huimin Liyuan Coal Industry Co., Ltd., fraudulent loans, bill acceptance and financial bills [(2020) Lu 162 1 Xingchu No.4].
The calculation of direct economic loss is of great significance in some cases. Because using different standards to calculate may affect whether it reaches the threshold of the crime of defrauding loans and whether it constitutes a crime.
Three, the loss must have the characteristics of "creditor's rights can not be realized"
After loans overdue, the bank reported the case directly. Generally speaking, it is difficult to directly identify "loss". The so-called loss can only be recognized as a loss if the creditor's rights cannot be realized after reasonable collection. Otherwise, it will expire. If the principal cannot be returned after reasonable collection, it shall be recognized as a loss. If the borrower provides a guarantee to a financial institution, the bank shall claim the guarantee responsibility from the guarantor in advance. If there is evidence that I or a third party refuses to perform the guarantee responsibility, and some cases cannot perform the guarantee responsibility, the loss can be calculated.
The Prosecution Standard (II) of the People's Bank of China (Yinfa [2001] No.416) and the Guiding Principles of Loan Risk Classification promulgated and implemented by the former CBRC on July 3, 2007 define the loan as "loss": "After taking all possible measures or all necessary legal procedures, the principal and interest cannot be recovered, or only.
Even within the banking system, everything is exhausted.
After filing a civil lawsuit, enforcing the law, and investigating the guarantor's responsibility, the uncollected principal and interest are "direct economic losses". In other words, if the bank did not exhaust the relief procedures, even if the perpetrator returned the loan after the incident, it should not be considered as a loss.
Reasonable collection in the determination of the crime of defrauding loans does not necessarily require civil litigation. But some obvious situations should not be considered as losses:
First, the borrower has the ability to repay, clearly indicating the responsibility to repay. According to the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Dereliction of Duty (I), "the part of creditor's rights that cannot be realized after bankruptcy is declared through legal procedures, the debtor absconds, his whereabouts are unknown, or the actor's responsibility exceeds the limitation of action shall be recognized as the economic loss of the crime of dereliction of duty". If these circumstances exist, it means that the borrower is unwilling to repay even if he has the ability. In addition, if the borrower has the repayment ability, it should not be considered as causing bank losses.
Second, if the borrower provides sufficient guarantee, the bank loss cannot be presumed. The "great loss" in the crime of defrauding loans should be direct, actual and final, and must be the actual result of the loss of credit funds of financial institutions. If the borrower provides sufficient guarantee, the bank will certainly be able to recover the property after taking civil litigation and execution, and will not cause losses.
Third, the borrower pays off the principal and interest before filing the case. Even if the perpetrator defrauded the loan by deception, but returned the principal and interest of the loan before the incident, it did not meet the objective requirements of "causing great losses to the bank or the amount institution", which naturally did not constitute a crime.
Four, it is not appropriate to identify the conclusion of "non-performing loans" issued by financial institutions as "causing significant losses"
On June 24th, 2009, the Second Court of the Supreme People's Court Criminal Trial's Opinions on the Standards for Filing and Prosecuting Crimes of Deceiving Loans, Accepting Bills, Financial Bills and Illegally Issuing Loans clearly pointed out that non-performing loans are divided into different grades according to different standards, and the risk level of each grade is also different, so it is not appropriate to conclude that financial institutions have "formed non-performing loans" and "caused great losses".
There is a difference between the classification of bank loans and the rules for determining losses in criminal proceedings. In criminal cases, besides considering the commercial operation of the bank, we should also examine the repayment attitude, guarantee ability and repayment ability. For example, the banking industry may identify the loss before the guarantor has a civil lawsuit, but in criminal cases, if the guarantor has the ability to repay, or the actor raises funds separately and repays before filing a case, it may not necessarily cause losses. It is not appropriate to simply equate the amount of non-performing loans with the amount of heavy losses suffered by financial institutions.
5. How to identify "particularly significant losses"?
Whether the second punishment for the crime of defrauding loans is less than 3 years or 3-7 years is applicable to cases that cause particularly heavy losses to banks. Up to now, the Supreme Court has not made a judicial interpretation of "particularly heavy losses".
In some cases, the judgment of what is "particularly significant loss" is unreasonable. For example, in Zhu Xyou's criminal case of defrauding loans and accepting bills of exchange [(202 1) Yu 1724 No.615], the court directly determined that "it was overdue by 4.2 million yuan, which caused particularly heavy losses to the bank".
In addition, Zhou× was tried for the crime of defrauding loans, bill acceptance and financial bills [(202 1) Zhejiang 0203 Criminal Chu No.254], and the principal 104475 1.26 yuan could not be returned, which was directly identified as causing particularly heavy losses.
In practice, the identification of "particularly significant losses" is quite inconsistent. Take the earlier judgment as an example. In the second instance of Li Moumou's crime of defrauding loans [(202 1) Shaanxi 08 Criminal Final WordNo. 147], the Intermediate People's Court of Yulin City, Shaanxi Province found that the appellant Li Moumou obtained bank loans by deception on March 1, which caused direct economic losses of more than 500,000 yuan to the bank, and the circumstances were particularly serious.
As for the determination of heavy losses and particularly heavy losses in the crime of defrauding loans, similarly, the Minutes of the Symposium on the Trial of Criminal Cases of Financial Institutions by National Courts stipulates that if the staff of banks or other financial institutions violate the provisions of laws and administrative regulations and make loans to others other than related parties, resulting in losses of more than 5 million yuan-110,000 yuan, they can be considered as "heavy losses"; Causing losses of more than 3-5 million yuan, can be identified as "particularly significant losses". The difference between the judgment amounts of "significant loss" and "particularly significant loss" is about five times.
In 2023, after the implementation of "filing standard 2", the filing and prosecution standard for the crime of defrauding loans is more than 500,000. If it is regarded as the standard of "significant loss", the standard of "significant loss" is 3 million according to the method that the difference between "significant loss" and "particularly significant loss" is roughly five times.
As for the amount standard of unit crime, it can be mastered according to 2-4 times of the amount standard of individual crime.
Concluding remarks
The above is to sort out the issues related to the determination of major losses and particularly major losses of the crime of defrauding loans after the filing standard II in 2023.
The crime of defrauding loans is a sword hanging over the heads of private entrepreneurs. Criminal defense lawyers believe that in order to establish this crime, it is necessary to distinguish the specific circumstances, and the financial institutions will not be investigated for criminal responsibility for corporate financing behavior that has not caused any losses, has no social harm or is obviously slightly harmful to society. For the purpose of production, operation and life, if there are certain false procedures for lending to financial institutions, but no losses have been caused to financial institutions, it may not be treated as a crime. (End)
Read more information:
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Related Questions and Answers: According to Chinese laws, the filing standard and sentencing standard of the crime of defrauding bank loans should be filed for prosecution in the case of loans, bill acceptance, letters of credit and guarantees. It is obtained by deception, as well as loans, bill acceptance, letters of credit, guarantees and so on. Being defrauded, causing direct economic losses of more than 200,000 yuan to banks or other financial institutions. Although it did not meet the above amount standard, it repeatedly obtained loans and bills acceptance by deception. Whoever commits this crime and causes heavy losses to banks or other financial institutions or has other serious circumstances shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; Whoever causes particularly heavy losses to banks or other financial institutions or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. If a unit commits a crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished. Who gets loans, bills, letters of credit, guarantees, etc. According to the provisions of Article 175 of the Criminal Law of People's Republic of China (PRC), whoever defrauds a bank or other financial institution of funds, causing heavy losses to the bank or other financial institution or other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or shall only be fined; Whoever causes particularly heavy losses to banks or other financial institutions or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph. Notice on Printing and Distributing the Provisions of the Ministry of Public Security of the Supreme People's Procuratorate on the Standards for Public Security Organs to Jurisdicte Criminal Cases for Filing and Prosecuting Article 27 [Cases of fraudulently obtaining loans, bill acceptances and financial bills (Article 175 of the Criminal Law)] If a bank or other financial institution obtains loans, bill acceptances, letters of credit and letters of guarantee by fraudulent means, it shall file a case for prosecution if it is suspected of one of the following circumstances: (1) Obtaining loans by fraudulent means. (2) Obtaining loans, bill acceptance, letters of credit, letters of guarantee, etc. By fraudulent means, causing direct economic losses of more than 200,000 yuan to banks or other financial institutions; (3) Obtaining loans, bill acceptance, letters of credit, letters of guarantee, etc. Take fraudulent means for many times, although it does not meet the above-mentioned amount standard; (4) Other circumstances that cause heavy losses to banks or other financial institutions or have other serious circumstances.