Legislative background
In the increasingly fierce market competition, we should not regard all loans that have not been repaid after obtaining loans from banks as loan fraud. Considering that obtaining loans from banks and financial institutions by deception in practice has objectively disturbed the normal financial order, the Criminal Law Amendment (VI) criminalizes it. There are two key points in determining the crime of defrauding loans. One is the identification of fraudulent means, and the other is the identification of "causing great losses to banks or other financial institutions or other serious circumstances". When handling such cases, judicial organs should pay attention to collecting evidence to prove that the defendant subjectively has the criminal intention of defrauding bank loans. At the same time, we should pay attention to finding enough evidence to prove that the actual consequences of the crime are very serious, which meets the requirement of "causing great losses to banks or other financial institutions or other serious circumstances" in the crime of defrauding loans.
The distinction between this crime and the crime of loan fraud and usury.
Whether it is the crime of defrauding loans or the crime of defrauding loans, it is objectively manifested in the use of fraudulent means to defraud loans. The difference lies in whether the actor subjectively has the purpose of illegal possession, or there is not enough evidence to prove that there is the purpose of illegal possession, which can only be regarded as the crime of defrauding loans. The crime of defrauding loans and the crime of lending at high interest are both set in the same article of the criminal law. Subjectively, the two crimes have no purpose of illegal possession of loans, but their objective behaviors are similar to some extent. If the perpetrator defrauds the loan and then lends it to others at high interest rate, his behavior may be consistent with the crime of defrauding the loan and the crime of lending at high interest rate. The final choice of which crime to apply depends on the offender's illegal income and the loss of banks or other financial institutions. For those who have caused great losses to banks or other financial institutions, the crime of defrauding loans is generally chosen to highlight the deception of criminal acts and the serious harm to financial order; If it doesn't cause great losses to banks or other financial institutions, the actor makes a profit by lending, which generally tends to be identified as the crime of lending at high interest.
Article 27 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Criminal Cases under the Jurisdiction of Public Security Organs issued by the Supreme People's Procuratorate and the Ministry of Public Security in May, 20 10 (hereinafter referred to as "Provisions (2)") stipulates that if a bank or other financial institution obtains a loan by deception or other means, resulting in a direct economic loss of more than 200,000 yuan, or if it fails to meet the above-mentioned amount standards, it has repeatedly defrauded the loan, causing heavy losses or other serious problems to the financial institution. Prior to this, in 2009, the Economic Investigation Bureau of the Ministry of Public Security took the lead in making the Reply on the Standards for the Prosecution of Crimes of Fraudulent Loans and Illegal Loans, and its basic spirit was also consistent with the above provisions. But we should pay attention to the retrospective effect of this explanation. Regarding the time effect of criminal judicial interpretation, the "two highs" and the "Provisions on the Application of Time Effect of Criminal Judicial Interpretation" have established the practice of "starting from the old and giving a lighter punishment from the old", stipulating that cases that have been concluded before the implementation of judicial interpretation are not wrong and will not be changed.