Under the condition of credit loan, the purpose of illegal possession is mainly decided by dangerous criminals, while under the condition of secured loan, the premise is consequential crimes.

Judging the purpose of "illegal possession" under the condition of credit loan depends on the fraud of the actor's behavior, while under the condition of secured loan, it is based on the authenticity of the guarantee.

Providing false financial reports only proves that the perpetrator has committed fraud and tried to influence the lender to achieve the loan purpose, but it cannot be determined on this basis alone.

It definitely constitutes loan fraud.

Article 193 of the Criminal Law stipulates the crime of loan fraud, and lists five cases of loan fraud. However, in judicial practice, many factors are often considered to determine the composition of the crime of loan fraud. The General Rules for Loans 1996 promulgated by the People's Bank of China on June 28th divides loans into two types: credit loans and secured loans. Under these two loan conditions, because banks have different bases for setting up loan contracts, banks bear different risks, and the crime of loan fraud is also different.

Differences in the basis for judging the purpose of illegal possession

Under the different conditions of credit loans and secured loans, the conditions for banks to make loan decisions are different, and the focus of financial risks is also different, so the purpose of determining whether they have "illegal possession" is bound to be different. The bank's lending behavior itself is a commercial behavior based on the loan contract, and there must be certain commercial risks, which of course includes the risks brought by the malicious behavior of the counterparty. How to determine the externalization form of subjective malice under different credit conditions must depend on the inherent requirements of the contract and the expected interest pursuit of commercial behavior.

1. Under the condition of credit loan, the purpose of illegal possession is mainly decided by the dangerous offender, while under the condition of secured loan, the premise is the consequential offender. Because credit loans are based on the borrower's personal reputation, and the subjectivity, variability and invisibility of reputation make the risk of bank borrowing relatively large, and the variable factors are relatively concentrated. "Illegal possession" is a judgment on the expected infringement of bank loan ownership. Under the condition of credit loan, as long as the actor absconded with money, squandered the loan, engaged in illegal activities, changed the purpose of the loan without authorization, the bank loan was in a high-risk state, and the realization of the bank's creditor's rights was in a dangerous state that could not be realized under reasonable expectation, the actor could be considered to have the purpose of "illegal possession".

Under the condition of secured loans, the establishment of commercial risk allocation mechanism of bank loans enables bank loans to realize their due creditor's rights by realizing collateral to a third party or repayment obligations of the principal debtor. Therefore, in the case of secured loans, the infringement of the ownership of bank loans can not be reasonably expected only by the dangerous state of bank loans, nor can it be determined that the actor has the purpose of "illegal possession". Only when the actor commits the above-mentioned acts against bank loans, resulting in the inability to repay bank loans and realize secured creditor's rights, can he be presumed to have the purpose of "illegal possession". Therefore, under the condition of secured loans, the establishment of the purpose of illegal possession must depend on the occurrence of substantial infringement on the ownership of bank loans.

2. The purpose of judging "illegal possession" under the condition of credit loan depends on the fraud of the actor's behavior, while under the condition of secured loan, it is based on the authenticity of the guarantee. The essence of loan fraud is fraud. Whether it is a credit loan or a secured loan, the crime of loan fraud is inseparable from a series of fraud. Credit loans and secured loans have different effects on successful loans due to different conditions, so the focus of judging the purpose of "illegal possession" according to fraud is naturally different.

Under the condition of credit loan, it essentially depends on the unilateral trust of the bank to the borrower. Although this trust is based on the judgment of the borrower's comprehensive objective factors, the subjectivity of trust itself also determines its influence and variability. A series of cheating behaviors of borrowers are enough to make banks trust them and reach a loan agreement. Therefore, to judge whether the actor has the purpose of "illegal possession" of the loan, it is important to see whether the actor has implemented a series of fraud before and after the establishment of the loan agreement. The illegality of its subjective intention is mainly manifested in the deception of its objective behavior.

Under the condition of secured loan, the risk of substantial infringement of bank loan ownership should be defended by guarantee. Therefore, we can't just violate the creditor's rights through the fraudulent behavior of the actor before and after the loan, but rely on the major defects of the guarantee to achieve the purpose of illegal possession. Therefore, under the condition of secured loan, considering the purpose of illegal possession by the borrower, the key point is to investigate the real degree of guarantee. If a loan is obtained by deliberately using false, illegal and flawed guarantees, and the bank loan cannot effectively resolve the risk through guarantees, then the purpose of the borrower's "illegal possession" is obvious.

Differences in objective identification of specific criminal acts

Credit loans and secured loans are based on different conditions from the bank's point of view. Credit loan is based on the evaluation of the borrower's credit status and credit rating; For secured loans, the bank not only examines the actual situation of the borrower, but also depends on whether the guarantee provided can meet the realization of the bank's due creditor's rights. Therefore, under the condition of secured loans, the basis for making loan decisions is mainly the authenticity of guarantees and the realization of interest expectations. Because the actual reference conditions of the two different types of loans are different, there must be different criminal judicial concerns and different criminal evaluation requirements in the determination of specific criminal acts.

1. Providing false financial statements directly affects the constitution of crime and non-crime under different loan conditions. The financial statements of enterprises directly reflect the operating conditions and performance ability of enterprises, and are important reference materials for measuring and evaluating the credit rating of borrowers. In the restrictions on borrowers stipulated in Article 20 of the General Principles of Loans, it is stipulated that borrowers shall not provide false balance sheets and income statements or conceal important facts to lenders. Some scholars list "providing false financial reports" as the crime of "using false documents" listed in Article 193 of the Criminal Law.

The author believes that when determining whether the borrower constitutes loan fraud, providing false financial reports can only prove that the perpetrator has committed fraud and tried to influence the lender to achieve the loan purpose, but it cannot be determined that it constitutes loan fraud. Because not all bank fraud constitutes a crime. Especially under different loan conditions, the determination of fraud as a criminal offence should be individualized and concrete. The reason why the lender requires the borrower to provide financial statements is to calculate the borrower's asset-liability ratio, current ratio and quick ratio, and measure the borrower's economic strength and performance ability accordingly, which is an important reference for evaluating the borrower's credit rating, but it is not the only reference. False financial statements may affect bank loan decisions, but it is difficult to judge to what extent financial statements are false to affect bank loan decisions. The lack of uniform standards in this respect has brought certain difficulties to conviction.

Therefore, in judicial practice, the crime of loan fraud can only be recognized if the borrower issues a substantial false financial statement before the loan, which fully affects the bank's evaluation of its credit rating, makes the bank make a loan decision accordingly, and makes the loan return in a high-risk state after obtaining the loan. However, under the condition of secured loan, issuing false financial statements is only a factor to measure the purpose of illegal possession of the actor, and it does not have the nature of directly determining the substantive elements of the crime of loan fraud. Therefore, under different loan conditions, there may be obvious differences between crime and non-crime simply by issuing false financial statements.

2. Change the identification differences of loan purposes under different loan conditions. In judicial practice, the situation of changing the use of loans is very complicated. The "General Principles of Loans" only regards "not using loans according to the purpose agreed in the contract" as the legal reason for banks to recover loans in advance and stop issuing loans, and it is not included in the scope of criminal responsibility investigation. Objectively, it also brings some confusion to the determination of the crime of loan fraud under the condition of changing use.

There are several ways to change the use of loans: first, abscond with money or use it for profligacy; The second is to use loans for illegal activities; The third is to invest loans in high-risk industries such as securities, futures, real estate and equity investment restricted by Article 20 of the General Rules for Loans; Fourth, due to the change of business risk, the profit expectation of the original agreed-upon use industry is reduced, and the loan has to be transferred to other industries for investment; Fifth, part of it is put into the agreed purpose, and the other part is used for other purposes; Sixth, the purpose of the loan is changed due to changes in the post-loan situation.

The first two types of loans that change their uses, whether under the conditions of credit loans or secured loans, fully reflect the purpose of illegal possession by travelers, so they can be identified as loan fraud. For the third category, because the actor's behavior is illegal, it can be the object of criminal sanctions, but it depends on the result of the actor's risk arbitrage behavior. If the actor changes the purpose of the loan, making the lender in a high-risk state, and there is enough evidence to prove that he can't repay the loan on time, it can be regarded as the crime of loan fraud under the condition of credit loan, while under the condition of secured loan, if there are serious defects in the guarantee itself, which can affect the realization of the due creditor's rights, it can only be regarded as a crime. For the fourth and sixth categories, under any loan conditions, criminal acts can not be determined only on this basis. In the fifth case, it is necessary to specifically analyze the real reasons for the change of use of some loans. If the actor has justified reasons to change the purpose of the loan, it cannot be punished as a crime.

3. Differences in the determination of the crime of loan fraud under the conditions of project loans. Project loan is a common form of bank loan, which is a loan that banks apply for according to specific projects. Article 193 of the criminal law lists "fabricating false reasons such as introducing funds and projects" and "using false economic contracts" as common forms of the crime of loan fraud under the condition of project loans.

Project loan itself is an interdependent field of financial risk and commercial risk. The determination of loan fraud under the condition of project loan depends on the authenticity of the project and the contract. Because the loan amount of the project is generally large, the general financial guarantee can not meet the requirements of resolving risks. Under the condition that China's loan insurance system has not yet been established, most project loans are in the form of credit loans. Some banks take the form of project guarantee, not typical secured loans, but only the priority mechanism for the realization of bank creditor's rights. Therefore, under the condition of credit loan, the true degree of the project determines the boundary between crime and non-crime. Article 193 of the Criminal Law uses the word "fabrication", indicating that in the case of project loans, it is the crime of loan fraud to obtain bank loans by using fictitious or fabricated projects. If a project only exaggerates the feasibility of the project and obtains a loan, it cannot be treated as loan fraud. As a broad project loan, "using false economic contract" depends on whether the contract is true or not. If the actor uses a false contract to obtain a loan, it can constitute the crime of loan fraud. If the actor does not use a false contract, even if he provides false supporting documents of other information of the borrower, it cannot be considered as loan fraud. In the case of secured loans, in addition to the authenticity of the contract, we should also examine the authenticity of the guarantee and the use of funds after obtaining the loan.

4. Determination of the crime of loan fraud under the condition of defective guarantee. Secured loan has become a common form of bank loan at present. Because the secured loan can effectively resolve and reduce financial risks and ensure the smooth realization of the bank's due creditor's rights, its positive significance is undeniable. However, due to the existence of a large number of secured loans, defective guarantees are inevitable. The existence of defective guarantee objectively increases the financial risk of banks. Therefore, it is of great significance to correctly handle the relationship between guarantee defects and loan fraud for maintaining financial order and ensuring financial security.

According to the Guarantee Law, guarantees can be divided into five types: guarantee, mortgage, pledge, deposit and lien, but the form of deposit guarantee is not applicable to financing guarantee. The four forms of financial guarantee, except for personal insurance, are all forms of property guarantee. Warranty defects are manifested in different ways due to different warranty forms. In the form of guarantee, because the object of guarantee is people, its defects are mainly manifested in:

(1) Whether the guarantor's qualification meets the provisions of Article 7 of the Guarantee Law and whether it has sufficient solvency;

(2) the scope of validity of the guarantee contract, including the time validity and the validity when legal reasons occur;

(3) the reasons for exemption proposed by the guarantor when the main contract is changed;

(4) The maximum amount of guarantee and the scope of creditor's rights;

(five) the way of guarantee;

(6) The assignment of creditor's rights leads to the effectiveness of the guarantee contract;

(7)*** and guarantee;

(8) Property preservation and dual-use issues.

In terms of property protection, the defects are mainly:

(1) the ownership of things;

(2) Whether the collateral has other real rights;

(3) Whether the mortgaged property has the right to claim the real right;

(4) Whether the original value of collateral is equivalent to the amount of creditor's rights;

(5) Whether the natural and commercial attributes of the collateral have changed.

When the actor knows that the defects in the guarantee may lead to the impossibility of realizing the secured creditor's rights, he must bear the corresponding legal responsibilities. It can be seen that warranty defects will turn into commercial fraud under certain circumstances. According to the provisions of China's criminal law, in the case of secured loans, only "false proof of property rights as a guarantee or repeated guarantee beyond the value of collateral" can constitute the crime of loan fraud. According to the principle of legally prescribed punishment for a specified crime, the defects in the form of guarantee cannot constitute the crime of loan fraud. Even in the form of property guarantee, only the authenticity of property ownership and the authenticity of property value are fraudulent to constitute the crime of loan fraud; However, other guarantee defects cannot be identified as loan fraud on the grounds of fraud.