(1) The loan contract is invalid.
The main reason that the borrower constitutes the crime of loan fraud is that although the validity of the contract should be adjusted by civil law, the crime should be adjusted by criminal law. If the criminal judgment finds that a natural person or unit constitutes the crime of loan fraud, but the civil judgment finds that the loan contract involved is valid, there is obviously a contradiction in legal logic, and the two should be either one or the other. Effective does not constitute a crime, and the crime is invalid. Criminal law is the strongest mandatory norm. Violation of criminal law will not only harm the interests of the parties, but also the interests of the country. It is a legal form to cover up illegal purposes. According to Article 148 of the Civil Code, the contract shall be deemed invalid.
(2) The loan contract is valid.
The main reason for determining the validity of the loan contract involved in the crime of loan fraud is that the judgment and determination of the validity of the contract belongs to the category of civil and commercial trials, and the standard for judgment and determination should also be civil legal norms. Although the borrower constitutes the crime of loan fraud, the validity of the loan contract involved should be examined from the perspective of civil law, that is, from the three elements of a valid contract: the actor is an apricot with corresponding civil capacity; Whether the expression of will is true; Whether it violates the law or the public interest. A loan contract that meets these three conditions shall be regarded as valid. What if the loan is cheated but the contract is signed? After the online loan is cheated, if you want to get the money back, users need to collect relevant direct evidence and report to the police as soon as possible, and fraudulent loans need to bear legal responsibility. Let's see what to do if the loan is cheated but the contract has been signed.
1. What should I do if the loan is signed under an assumed name?
If the loan contract is signed by fraudulent means, the fraudulent party may apply to cancel the contract. If it is signed by fraud, the parties can report it to the police, which may constitute the crime of contract fraud.
People's Republic of China (PRC) Civil Code
Article 148 Where a party commits a civil juristic act by fraud against its true meaning, the aggrieved party has the right to request a people's court or an arbitration institution to cancel it.
Criminal law of the people's Republic of China
Article 224 For the crime of contract fraud, whoever, in any of the following circumstances, defrauds the other party of property for the purpose of illegal possession in the process of signing and performing a contract, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or confiscated:
(1) Signing a contract in the name of a fictitious entity or others;
(2) Using forged, altered or invalid bills or other false certificates of property rights as collateral;
(three) to perform a small contract or part of the contract first, to deceive the other party to continue to sign and perform the contract, and to have no actual performance ability;
(4) After receiving the payment for goods, advance payment or secured property paid by the other party;
(5) defrauding the other party's property by other means.
Second, the difference between loan fraud and contract fraud
1. The objects they violated are different. Although both infringe on complex objects and property ownership, they have different emphases. The object of contract fraud is mainly the contract supervision system; The object of the crime of loan fraud is mainly financial management order.
They happen on different occasions. The crime of contract fraud occurs in the process of signing and performing the contract; The crime of loan fraud occurs in the operation of banks or other financial institutions.
3. The direct goals of the two are different. The direct object of the crime of contract fraud is the property or loan of the other party; The object of the crime of loan fraud is the loan of a bank or other financial institution.
What if the loan is cheated but the contract is signed?
1. Is it a crime of fraud that online loans are not repaid?
If it is an illegal online loan, it may constitute fraud. No matter what kind of loan, if you don't repay it or know that you are unable to repay it, it may constitute a crime of fraud, but the specific amount should also depend on the amount and attitude. Therefore, the amount of online loans cannot be regarded as one. Whoever swindles a large amount of public or private property shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined.
Second, what are the consequences of peer-to-peer lending?
1. will generate late fees and penalty interest. Each online lending platform charges different fees for overdue fees, but according to feedback from netizens, most platforms will have a "tolerance period" to generate late payment fees, but once the "tolerance period" set by the platform is exceeded, it will become a fine. If you keep overdue, you will owe more and more money, which is not good enough!
2. There will be a reminder, which is worse. Collection is generally divided into several stages, and the stage of each platform is different. However, most of the time it is the "tolerance period", which is the first stage. At this time, the dunning is a gentle reminder to inform you that it is overdue, so please repay it on time.
In the second part, punishment usually occurs after the "tolerance period". At this time, you will know how much the fine will be, and your attitude will become serious, warning how serious the consequences will be if it is overdue.
The third part, after a certain period of time, the platform will think that your willingness to repay is poor, and launch some practical actions to collect money from credit, psychology and interpersonal relationships, which will make you miserable. A little longer, it will be handed over to the outsourcing collection company. At this time, the means are even more powerful, and there may be "violent collection", which really has a huge impact on life and makes people miserable.
3. Credit information is polluted. Although there are still many online loan platforms that are not connected to PBOC's credit information system, it is an inevitable trend to connect to PBOC's credit information system in the future. If these online loans are not repaid, the platform may not be able to do anything for you in a short time, but with the influence of the later period, money cannot buy them back. People want to live as long as possible. To say "honor one's ancestors" upwards, "benefit future generations" downwards and "for oneself" means to live a comfortable and high-quality life. If the credit information is tainted, you can't get a loan to buy a house, a mortgage to buy a car, an airplane, etc. Even your children will be dragged down by yourself in the future.
4. discredited. I believe everyone has seen the recent measures taken by the court against Lao Lai. What is Lao Lai's exclusive ringtone? Lao lai's list is placed at the beginning and end of cinema films. Lao lai's list is already on fire in Tik Tok. If it is released, it will be really shameful. If you don't say it yourself, your family will lose face.
The defendant went to court. The loan is overdue for a long time or deliberately not repaid. After the amount exceeds 2,000, it can already constitute a crime of fraud and is in danger of being sued by the online lending platform. If the court decides that the online lending platform wins the case, the borrower will not only have to pay the money that needs to be repaid, but also pay the litigation costs and huge fines of both parties, and even face jail time.
In this case, if you don't intentionally illegally occupy the loan and don't repay it, it's not loan fraud. Whoever fails to repay a large amount of loans for the purpose of illegal possession shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan.
The loan was cheated, but what if the contract was signed? What does fraudulent loan mean?
Fraudulent lending refers to obtaining loans from banks or lending institutions by using fraudulent materials or concealing the truth for the purpose of illegal possession. As fraudulent loans damage the bank credit order and infringe on the right to use public and private property, fraudulent loans need to bear legal responsibility. There are certain sentencing standards for fraudulent loans. Users can refer to the following specifications. For example, if the amount of fraudulent loans is less than 4,000 yuan, it is mainly to pay a fine, while if the amount of fraudulent loans is more than 4,000 yuan but less than 5,000 yuan, it is a controlled punishment.
What should I do if the online loan is cheated? How to recover the money?
After being cheated in the online loan, in order to get back the money, users need to quickly collect relevant direct evidence (such as transaction records, other party accounts, chat screenshots, etc.). ) bring a lawsuit to the local court or report the case to the local public security organ. At the same time, you can also report the loan platform to the local China Banking and Insurance Regulatory Commission, China or China Network Finance Research Association to safeguard your legitimate rights and interests. Users need to hurry up. If they don't report the case at the first time, and the delay is too long, the other party may have "rolled up the money and ran away", and the cheated money may be difficult to recover.
Legal basis:
People's Republic of China (PRC) Civil Code
Article 144 A civil juristic act performed by a person without capacity for civil conduct is invalid.
Article 146 A civil juristic act carried out by the actor and the counterpart on the basis of false intention is invalid.
Whoever conceals the validity of a civil juristic act with false intention shall be dealt with in accordance with relevant laws and regulations.
Article 148 Where a party fraudulently causes the other party to commit a civil legal act against its true meaning, the aggrieved party has the right to request the people's court or an arbitration institution to cancel it.
Article 153 A civil juristic act that violates the mandatory provisions of laws and administrative regulations is invalid. However, unless mandatory provisions do not invalidate civil legal acts.
A civil legal act that violates public order and good customs is invalid.
Article 154 A civil legal act in which the actor colludes with the counterpart in bad faith and damages the legitimate rights and interests of others is invalid.