Although the bank staff computer inquired about the issuing bank, ticket inspection and other means, but no cloned tickets were found. So after deducting the relevant expenses, it lent 2.7 million yuan to Company A for a period of 4 months. After that, A transferred 6.5438+0.5 million yuan from Company A or used it to repay debts, gamble, or personal profligacy; Company A did not use the loan of 6,543,800 yuan+0.2 million yuan to purchase equipment, and a small part of the debt was repaid, most of which was squandered by Manager Ding of Company A. After the loan expired, the billing bank closed the case and the loan has not been recovered so far. Objection: After this case is brought to court, there is no objection to the fact that A (B Manager B and Manager D are handled separately) constitutes a crime, but there are differences on how to define it: The first opinion is that A constitutes the crime of loan fraud, and it should be punished as the crime of loan fraud according to its purpose; The second opinion should be punished according to the crime of bill fraud, because A used cloned bills of exchange to defraud bank loans, which is in line with the legislative provisions of Article 194 (1) of the Criminal Law, "knowingly using forged or altered bills of exchange, promissory notes and checks", and should be convicted of bill fraud; The third view is that A used cloned bills of exchange to defraud bank loans, which constitutes the crime of loan fraud and bill fraud, and belongs to the overlapping of the evaluation scope of the law. Since the principles of general law and special law cannot be applied to deal with it, the principle that law is superior to law should be considered. Judging from the comparison of statutory penalties, the crime of loan fraud is obviously a light law, and it is appropriate to characterize it according to the crime of bill fraud. Comment: The author agrees with the third opinion, mainly because the "supporting documents" stipulated in Item (3) of the crime of loan fraud in Article 193 of the Criminal Law should include financial bills, namely bills of exchange, promissory notes and checks. Because the bill has the characteristics or functions of invalidity, literariness, creativity and liquidity, it is unnecessary to notify the debtor who has signed the bill when transferring the bill. The result of the transfer is valid for the debtor of the bill, and the holder can directly exercise the rights of the bill against the signatory on the bill. The Bill Law clearly stipulates that the signer of the bill shall bear joint and several liabilities, and the bill right, as a kind of money bond, has two kinds of creditor's rights. When the first creditor's right cannot be realized, the last holder of the bill can directly exercise the right of recourse against all the prior parties (including the drawer), and finally realize his rights on the face, that is to say, the right of recourse of the bill can be leaping and selective. Generally speaking, the circulation of bills is relatively safe, which proves the credit degree of borrowers holding financial bills. The author believes that financial instruments should be included in the "certification documents". Frankly speaking, holding bills is equivalent to holding cash, especially when the amount is large and inconvenient to carry, it is safe and can reduce a lot of trouble to use bills for settlement. In this case, the bill holder A used the cloned forward draft as the pledge. Because the bank staff did not identify the authenticity, he went through the loan formalities according to the real time draft, which was in line with the third item of the crime of loan fraud in Article 193 of the Criminal Law and could constitute the crime of loan fraud. At the same time, the Guarantee Law stipulates that bills can be pledged, and the effect of pledge of rights is delivery essentialism. This behavior should also be in line with Item (4) of this article, "Using a false property right certificate as a guarantee ...", and defrauding a bank loan by pledge of rights, with a large amount, is also in line with the criminal constitution of the crime of loan fraud. To take a step back, even if the bills are not included in the supporting documents, the expression of "defrauding loans by other means" in Item (5) of Article 193 of the Criminal Law covers a wide range, and there is no reason to exclude the use of forged bills to defraud loans, which also constitutes the crime of loan fraud. Bill pledge is bound to involve the legal evaluation of bill fraud. In this way, there is an overlap between legal provisions and legal provisions in the evaluation scope, which is a cross form, that is, there are both this and that, which should belong to the problem of concurrence of legal provisions. In order to avoid repeated evaluation, only one crime can be punished. Moreover, the principles of general law and special law cannot be applied to deal with it, and only the principle that the law is superior to the law can be considered. Compared with the statutory punishment, the death penalty stipulated in Article 199 of the Criminal Law contains the crime of bill fraud and excludes the crime of loan fraud, so it is more appropriate to treat it as the crime of bill fraud. For example, in 2005, the second question of National Judicial Examination Paper 4 solved this case, which I think is of great reference value: Ding is the director of an electrical appliance factory in the eastern suburb of a city (private enterprise, no one can qualify), and in 2003, due to the shortage of funds in the factory, he repeatedly failed to borrow money from the bank. To this end, Ding Mou imitated the seal pattern on the bank deposit slip, forged the savings seal and administrative seal of Bank A, as well as the name seal of the bank staff, and forged two deposit slips named Huang and Tang Zaijia Bank, each with a deposit of 500,000 yuan. Later, Ding invited Zhu, the deputy director of the office of Bank B (a state-owned financial institution), to have dinner, and told Zhu of the intention of the electrical appliance factory to apply for a deposit certificate mortgage loan in the office of Bank B, and promised to thank him afterwards. Zhu saw that it was profitable and asked Ding to go to the office the next day to find Zhang, the head of the credit department, and promised to say hello to Zhang. The next day, Ding came to the office of Bank B. Zhu introduced it to Zhang and asked him to keep it. When reviewing the loan materials submitted by Ding, Zhang had doubts about the two certificates of deposit of Bank A, so he sent a letter to Bank A for inquiry. At this time, Ding urged Zhang through Zhu, and Zhang called to ask questions. A bank savings section chief promised to handle it soon, but Zhang did not wait for a reply, so he handled the mortgage loan formalities for Ding and reported it to Zhu for approval. Hou Jia Bank did not reply to the inquiry. Zhu found something wrong with the materials during the examination and approval process, so he called Ding to ask. After seeing Zhu, Ding told the whole story about the fake certificate of deposit, and lied to Zhu that there was a big business to make money, and the loan would be returned as scheduled, and he gave Zhu a benefit of 6,543,800 yuan on the spot. Zhu Jianding agreed, so he accepted the benefit fee and agreed to lend Ding 1 10,000 yuan. After Ding got the loan, he gave Zhang 50,000 yuan in the name of thanks, and Zhang accepted it. Ding put all the loans into the electrical appliance factory, and the losses were exhausted, which made it impossible to repay the bank loans. The procuratorate sued the case to the court. Judging from the reference answers of the Ministry of Justice, Ding, as far as he is concerned, constitutes the crime of forging corporate seals, forging financial vouchers, financial voucher fraud, loan fraud and bribery. Among them, (1) the crime of forging company seal is related to the crime of forging financial documents, which should be classified as the crime of forging financial documents according to the principle of judging from a felony; (2) There is a connection between the crime of forging financial vouchers and the crime of financial voucher fraud. According to the principle of judging from a felony, it should be punished as the crime of financial voucher fraud; (3) The crime of financial voucher fraud is also related to the crime of loan fraud. According to the principle that law is more important than law, it should be punished as the crime of financial voucher fraud. To sum up, Ding constitutes the crime of financial voucher fraud and bribery, and he is punished for several crimes. Here, Ding Mou forged the savings seal and administrative seal of Bank A, which violated the crime of forging the company seal in the second paragraph of Article 280 of the Criminal Law (the answer of "forging the company seal" announced by the Ministry of Justice is not accurate, because the bank should be a company). Ding Mou forged a bank deposit slip, which violated the provisions of Item (2) of the first paragraph of Article 177 of the Criminal Law, and has constituted the crime of forging financial tickets (the answer published by the Ministry of Justice was wrong in the crime of forging financial tickets). Ding used forged seals to make fake bank deposit certificates. The crime of forging company seal and the crime of forging financial bills are related to means and purposes, and they are implicated offenders. They should be regarded as felonies and crimes of forging financial bills. Ding's act of using false certificates of deposit to guarantee loans constitutes the legal concurrence of loan fraud and financial voucher fraud. First of all, the general principle of dealing with the concurrence of articles of law is that special law is superior to general law. Only in the same law, the statutory punishment of general clauses is obviously heavier than that of special clauses, and the law does not prohibit the use of general clauses, can the principle of emphasizing law over law be applied. In the title, the relationship between loan fraud and financial voucher fraud should be imaginative competition. Second, the crime of loan fraud and the crime of financial voucher fraud are both purpose crimes, and they must have the purpose of illegal possession, that is, they have the intention to take the loans or money defrauded by forged or altered financial vouchers for themselves or make a third party illegally possess them without returning them. In addition, the Supreme People's Court's "Criminal Trial Reference Case Analysis" No.33 also holds the same view. Therefore, the author thinks that we can learn from the analysis of our examination questions and the Supreme People's Court's suggestion on how to correctly characterize this case. As far as this case is concerned, some people think that if A holds an unexpired forward draft and the endorsement is transferred to the bank for cash, the bank will deduct 300,000 yuan from the face value of 3 million yuan from the redemption date to the maturity date and pay the balance of 2.7 million yuan to the holder. It is considered that this case is a discount to defraud bank loans, and it can also be classified as "other" in item (5) of the crime of loan fraud in Article 193 of the Criminal Law. The use of forged or altered bills for loan fraud is also in line with the constitutive requirements of the crime of bill fraud. There is an overlapping or competing relationship between the two provisions, which should be punished as bill fraud. Through the above simple analysis, whether it is identified as "using false certification documents" or "using false property rights certificates as a guarantee ...", or endorsing and transferring to a bank to obtain cash, it is considered that A's behavior not only constitutes the crime of loan fraud, but also constitutes the crime of bill fraud, and should be punished according to the principle that law is more important than law. Therefore, the author agrees with the third opinion.