On this issue, we need to distinguish the premise of discussion:
First, changing the purpose of the loan after legally obtaining the loan does not necessarily constitute the crime of loan fraud.
Second, after defrauding financial institutions by fraudulent means, changing the purpose of loans may become the criminal cause of the crime of loan fraud, but we should still distinguish between the reasons for changing the purpose and the actual purpose.
One is to change the nature of the loan use after legally obtaining the loan.
The Minutes of the Symposium on the Trial of Financial Crimes by National Courts clearly pointed out: "We should strictly distinguish the boundaries between loan fraud and loan disputes. After legally obtaining the loan, if the loan is not used according to the prescribed purpose and the loan is not returned at maturity, it cannot be convicted and punished for loan fraud. "
Why does it not constitute the crime of loan fraud to change the purpose of the loan after legally obtaining the loan?
On the one hand, the actor obtained the loan through legal means, and objectively did not fabricate facts or conceal the truth to defraud the loan. Even if the purpose of illegal possession occurs afterwards, it cannot be attributed to the previous act, and the perpetrator does not constitute the crime of loan fraud;
On the other hand, in actual cases, many enterprises and parties did apply for loans for the operation of a certain business, but due to changes in the actual situation, the project could not continue, or for other objective reasons, they had to change the purpose of the loans. At this time, the parties still use the loan for the normal business activities of the enterprise, which cannot prove the subjective illegal possession purpose of the actor.
Second, after using false economic contracts, false documents and other means to defraud loans, changing the purpose of loans does not necessarily constitute the crime of loan fraud.
To constitute the crime of loan fraud, first of all, the actor is required to objectively implement the deception of fictional facts and concealing the truth; On this basis, discuss whether the actor subjectively has the purpose of illegal possession. Changing the purpose of borrowing may be the subjective factor of illegal possession by the case-handling organ, but it cannot be concluded that the purpose of illegal possession is inevitable.
There are also provisions in the Minutes of the Symposium on the Trial of Financial Crimes by National Courts, pointing out that in cases suspected of loan fraud, the subjective illegal possession purpose of the perpetrator can be inferred according to the following circumstances:
1. defrauding a large amount of funds knowing that he is unable to repay; 2. Escape after illegally obtaining funds; 3. Spending money to defraud funds; 4. Using fraudulent funds to engage in illegal and criminal activities; 5. Evade, transfer funds or hide property to avoid returning funds; 6. Concealing or destroying accounts, or carrying out false bankruptcy or false bankruptcy to avoid withdrawing funds; 7 other acts of illegal possession of funds and refusal to return them.
Combined with the provisions of the relevant judicial interpretation, we can see that the relevant norms do not take "changing the purpose of the loan" as one of the statutory circumstances to infer the subjective illegal possession of the actor.
Objectively speaking, it is not conducive for the defendant to defend the crime of loan fraud by changing the purpose of the loan after the actor obtains the loan by deception. If a party changes the purpose of the loan, but still uses it in actual business activities, and it can be proved that it is forced to do it for objective reasons, or that the party is willing to repay the loan in order to create the ability to perform, it still does not constitute the crime of loan fraud in strict accordance with the provisions on the constitutive elements of the crime of loan fraud.
On the contrary, it is illegal for the actor to change the purpose of the loan for personal consumption or even profligacy after obtaining the loan, which is often recognized as the crime of loan fraud.
Third, take the innocent case made by the court as a reference for the innocent defense.
Innocent case 1: Chen is suspected of loan fraud and credit card fraud.
Source: Zhanjiang Intermediate People's Court, (20 17) Guangdong 08 Criminal Final WordNo.. 6 1.
Reasons for innocence: After the appellant Chen signed the installment payment business for home decoration with Zhanjiang Branch of Bank of China, he failed to use the loan according to the specified purpose and illegally cashed it out for other expenses, which was deceptive. In the crime of loan, the lender obtains the loan by deception, which may be suspected of fraud and loan fraud. The crime of defrauding loans refers to the act of obtaining loans, bill acceptance, letters of credit and guarantees from banks or other financial institutions by deception, which causes certain losses to banks or other financial institutions or has other criminal circumstances. The crime of loan fraud refers to the act of defrauding banks or other financial institutions of a certain amount of loans for the purpose of illegal possession. The boundary between the two crimes lies in whether they have the purpose of illegal possession. For the determination of whether the perpetrator of the crime of financial fraud has the purpose of illegal possession, we should adhere to the principle of subjective and objective consistency, not only to avoid objective liability based solely on the loss results, but also to analyze the case according to the specific circumstances. In this case, the appellant Chen obtained a loan of 200,000 yuan by fraudulent means because he did not have the loan conditions. However, when he applied for a credit loan of 200,000 yuan from Zhanjiang Branch of Bank of China for the installment payment of home decoration, he submitted his real identity information and his real estate certification materials, which confirmed that Chen Mou had the ability to repay the arrears, and that he had repaid most of the loans before the incident and was able to fulfill the repayment obligations of a small number of outstanding loans after the incident. Therefore, it cannot be concluded that Chen has the purpose of illegally possessing the money and should not be convicted and punished for the crime of loan fraud.
Innocent Case 2: Zhang Moumou was charged with loan fraud.
Source: Hebei Higher People's Court, (2002) Ji Xing Zhong Er Zi No.78 ruling.
Reasons for innocence: Zhang Moumou, the defendant in the original trial, obtained a bank loan by fraudulent means and failed to use the loan as agreed in the contract. However, Zhang Moumou, the defendant in the original trial, used loans to buy fixed assets and futures investments, and actively sought repayment methods. The evidence for his subjective purpose of illegally occupying bank loans was insufficient. Therefore, Zhang Moumou's behavior in the original trial cannot be punished as loan fraud.