Case analysis of loan crime
I. The case
Defendant Geng, male, 43 years old, from Yangzhong City, Jiangsu Province, was originally the manager of the second development department of Guizhou Shenhui Real Estate Development Co., Ltd.1August 1997 12.
1In mid-September, 1996, the defendant Geng, as the entrusted agent of the second development department of Guizhou Shenhui Real Estate Development Co., Ltd., signed a construction contract for Dongshan Residential Building with Guiyang No.1 Construction Engineering Company represented by Li Bangming, and Guiyang No.1 Construction Engineering Company undertook the Dongshan Residential Building developed by the second development department. At the same time, at Geng's request, Li Bangming opened an account with the account number "5665" in the name of Li Bangming in Guiyang City Credit Cooperative, and deposited 50 1000 yuan in the seventh branch of Guiyang No.1 Construction Engineering Company contracted by himself, and handed the current passbook to Geng as the project payment. After receiving the passbook, Geng personally wrote the receipt, and stamped the official seal and financial seal of the second opening department, indicating that he would return it after entering the market within one month.
On June 6 16 of the same month, Geng took Li Bangming's passbook to Guiyang Credit Cooperative as a mortgage loan, and signed a loan contract with the credit cooperative in the name of Li Bangming, with a term of1September 65438+. Geng set up a loan account of 100 yuan, the account number is "5673", and the credit union deducted the loan interest of 1 128.32 yuan for payment on the same day.
From then on to 65438+February 10, Geng withdrew all the loans from the "5673" account. After the loan expires, Guiyang Zhu Jin Urban Credit Cooperative deducted the loan and overdue interest from the passbook mortgaged by Li Bangming. Li Bangming failed to enter the construction site at the expiration of one month, and failed to get the passbook back from Geng. Later, he went to the credit union to inquire and found that the passbook had been mortgaged in his own name, so he filed a civil lawsuit with Guiyang Intermediate People's Court. After hearing the case, Guiyang Intermediate People's Court held that the credit cooperatives should bear civil liability for restoring the passbook to its original state without examining the loan. The court ruled: "Guiyang Zhu Jin Urban Credit Cooperative restored Li Bangming's current savings account No.5665 to its original state on September 1996 (deposit 50 1000 yuan)?" The verdict has come into effect. After the incident, except for the recovery of two mobile phones (worth 1 1000 yuan) purchased by the defendant Geng, the rest of the money has been squandered by Geng.
The People's Procuratorate of Guiyang City, Guizhou Province filed a public prosecution with the Guiyang Intermediate People's Court for the crime of intentional injury committed by the defendant Geng. The defendant Geng had no objection to the main facts accused by the public prosecution agency, but argued that the money he defrauded was Li Bangming's personal property, not state property, and requested a lighter punishment.
Second, judgment.
After a public hearing, Guiyang Intermediate People's Court held that the defendant Geng, for the purpose of illegal possession, made a false guarantee for other people's property and defrauded a credit cooperative loan of 360,000 yuan in the name of others, which constituted a loan crime, and the amount was extremely huge, which should be punished according to law. The public prosecution agency accused the defendant Geng of committing a wrong crime and should correct it. The defendant's excuse is untenable and will not be adopted. In accordance with Article 12, paragraph 1, of the Criminal Law of People's Republic of China (PRC), Article 10, paragraph 1, and Article 22 of the Decision of the NPC Standing Committee on Punishing Crimes Disrupting Financial Order, and Articles 52, 51, paragraph 1, and 50 of the Criminal Law of People's Republic of China (PRC) 1979, our hospital made a decision of 1997.
1. Defendant Geng committed the crime of loan and was sentenced to 15 years and 5 years' imprisonment, with 50,000 yuan of property confiscated.
2. Continue to recover RMB 349,000 yuan owed by the defendant Geng.
After the verdict was pronounced, the defendant Geng refused to accept it and appealed on the grounds of "private money, unintentional, and excessive sentencing".
After the second trial, the Higher People's Court of Guizhou Province held that the appellant Geng borrowed 360,000 yuan from the credit union in the name of others for the purpose of illegal possession, which constituted a loan crime and the amount was extremely huge, which should be punished. Geng appealed that "it was private money, not intentional". After investigation, Geng confessed in the court of first instance that he used Li Bangming's passbook as a mortgage loan, privately carved Li Bangming's seal and signed a loan contract with the credit union, defrauding the credit union of 360,000 yuan, and successively took out all the money, which was consistent with his previous statement in the public security organ, so his appeal reason could not be established. The original judgment found that the facts were clear and the evidence was sufficient, but the applicable law was improper and should be corrected. Geng's appeal was unreasonable and was not adopted. In accordance with Article 189 (2) of the Criminal Procedure Law of People's Republic of China (PRC) and Article 12 (1), Article 193, Article 55, Article 56 and Article 64 of the Criminal Law of People's Republic of China (PRC), our court made the following criminal judgment on March 6, 1998:
Maintain the first and second criminal judgments of Guiyang Intermediate People's Court on this case, that is, the appellant (the defendant in the original trial) committed the crime of borrowing money, sentenced to 15 years and 5 years in prison, and confiscated property of RMB 50,000; Continue to recover the money owed by Geng Shang, RMB 349,000.
Second, the bank and the lender conspired to conceal the case of cheating the guarantor. 202 1 is this year based on the old guarantee law or the civil code?
Neither is used in criminal cases; Civil law 2021is applicable to civil cases; The judgment has come into effect, and the appeal of the old guarantee law 202 1
Three, there is no agreed repayment period of the guarantee period, the debtor within six months after the maturity of the loan. ...
If their behavior continues. Then the guarantee contract itself is invalid. Because the main contract is fraudulent and invalid, the guarantee contract with invalid main contract is invalid. At the same time, if losses are caused to the guarantor, he shall be liable for compensation. Anyone suspected of committing a crime will be prosecuted.
4. What is the case of China Bank's fraudulent loan guarantee?
1. The fact that the bank and the borrower maliciously colluded to defraud the guarantor is established, and the guarantor does not assume the guarantee responsibility.
L case index 1 Shandong Higher People's (20 16) Lu MinzhongNo. 1467
Referee's key points: When the borrowing company did not have the loan conditions, the bank instructed and acquiesced the borrowing company to provide false information, and completed the approval and issuance of the loan. According to the loan background and the negotiation between the bank and the borrowing company at that time, it can be concluded that in the process of handling the loan, the bank and the borrowing company colluded maliciously to defraud the guarantor to provide a guarantee, and the guarantor did not bear civil liability.
visual angle
We believe that the focus of the dispute between the two parties in this case is whether a construction company, Lin and Lin should bear the guarantee responsibility for the loan involved.
According to the facts ascertained in the first instance of this case, Chen Mou, the loan manager of a village bank, in the process of handling the loan in this case and in the process of reviewing the loan information of the borrowing company, prompted and acquiesced the borrowing company to forge the enterprise balance sheet, and instructed and acquiesced the borrowing company to provide forged commissioned processing reactor contracts, which passed the loan approval.
Through the above actions, a village bank and a borrowing company completed the approval and issuance of loans when the borrowing company did not have the loan conditions. Although the fact that criminal judgment, a high-penalty person in Jinan High-tech Industrial Development Zone No.49 (20 1 1) and the public security organs investigated and found that he was not classified as an accessory or a * * criminal, according to the background of the loan involved at that time and the fact that a village bank and the borrower involved in the loan, it can be concluded that a village bank colluded maliciously with the borrower to defraud Lin and a construction company to provide guarantees. According to the provisions of Article 30 of the Guarantee Law of People's Republic of China (PRC), a certain forest or a construction company shall not bear civil liability. The appeal grounds of the construction company, Lin and Lin for exemption from the guarantee liability are established and supported by our court.