How Do I Report Bank Fraud?

The crime of loan fraud refers to the fact that an actor, for the purpose of illegal possession, uses a fictional fact or conceals the truth to cause a bank or other financial institution that is in opposition to its financial transaction status to fall into a misunderstanding or continue to misunderstand. The third party designated by him has delivered a large amount of loans, which mainly violated the credit order and violated the ownership of public and private property, violated the criminal law and should be held criminally responsible.

Bank fraud

Right!

The crime of loan fraud refers to the fact that an actor, for the purpose of illegal possession, uses a fictional fact or conceals the truth to cause a bank or other financial institution that is in opposition to its financial transaction status to fall into a misunderstanding or continue to misunderstand. The third party designated by him has delivered a large amount of loans, which mainly violated the credit order and violated the ownership of public and private property, violated the criminal law and should be held criminally responsible.

Chinese name

Bank fraud

Part of speech

noun

Classification

Proper noun

Subject

economics

Field

legal

Introduction

In our country, the special criminalization of loan fraud was started in the context of economic crime. The transition of the economic system and the expansion of social and economic activities, especially the formation of the modern financial system, will inevitably be accompanied by a large number of anomalies in the process of establishing the required norms. The large number of loan fraud is a typical case. These actions seriously disrupted the normal financial order, and at the same time undermined the social credit mechanism, one of the foundations of the socialist market economy. Just as Mr. Chen Xingliang said that criminal law is created to meet the needs of society [1], in this case, criminal regulation of loan fraud becomes necessary. Thus, the Criminal Code of 1997 provided for the crime of fraud on loans. So what is the crime of loan fraud? According to Article 193, the crime of loan fraud refers to the fact that an actor, for the purpose of illegal possession, uses fictional facts or conceals the truth to cause a bank or other financial institution that is in opposition to its financial transaction status to fall into a misunderstanding or continue to misunderstand. The local government delivered a large amount of loans to the actor or its designated third party, which mainly violated the credit order and violated the ownership of public and private property, violated criminal law and should be held criminally responsible.

The provision stipulates five types of behaviors and consequences of common loan fraud, which to a certain extent has curbed the more rampant loan fraud crimes for a period of time. However, due to the limited legislative technology at that time and some objective reasons, it caused its own shortcomings in the legal provisions and there were also many problems in the implementation of the criminal law. Therefore, both in the theoretical world and in judicial practice, disputes over loan fraud are also increasing. In the following, the author will explore from two more controversial levels and put forward my own views in order to promote the improvement of this article.

I. Is the Criminal Law Establishing the Crime of Loan Fraud "Necessary for the Purpose of Illegal Possession"?

(A) from the semantic analysis

Why does our criminal law only set up loan fraud crimes instead of setting up loan fraud crimes like abroad? The author believes that this is inseparable from the legal benefits that China's legislators pay attention to. We leave aside whether the establishment is reasonable or whether the social functions protected by criminal law can be achieved. From a semantic analysis, the crime of loan fraud requires illegal possession. Necessary is what it means. Next, let's examine the differences in the etymology of "fraud" and "fraud". "Fraud" and "fraud" are synonyms, but they have subtle differences in the aspects, emphasis, and additional color of the meaning of the word. As far as the former is concerned, "fraud" emphasizes the nature and manner of the behavior, rather than focusing on results: Although "fraud" shows the same nature and manner of behavior, it emphasizes the result and purpose of the behavior. In other words, the extension of "fraud" is more broad, as long as there is a fictional fact or an act that conceals the truth and intends to cause people to misunderstand, as to whether others have misunderstood, and whether the actor illegally possesses the purpose, It is not concerned by "fraud"; the extension of "fraud" is much narrower, not only emphasizing the purpose of illegal possession of the perpetrator, but also emphasizing the misunderstanding of others. In terms of the latter aspect, the additional emotional color of "fraud" is weaker than "fraud", so the moral negative evaluation of "fraud" is not as serious as "fraud". The difference between the two aspects requires that criminal law use "fraud" in crimes to focus on the purpose and result of the conduct; it is not necessary to use "fraud". Because of this, traditionally fraudulent forms of fraud are always required to be committed as a result. If the crime of "fraud" is constituted for fraudulent acts that do not require the purpose of illegal possession and result, the quality is not consistent. Therefore, fraud is a special form of fraud, and fraud is a special form of fraud. Therefore, from the semantic analysis, only for the crime of "loan fraud", it emphasizes the subjective purpose and the harmful result, and the crime should of course be "for the purpose of illegal possession". However, linguistic analysis of the crime of loan fraud is obviously inappropriate, and it cannot solve some problems in judicial practice. Therefore, it needs to be explored from other aspects.

(B) from the perspective of criminal entities

The crime of loan fraud stipulated in China's criminal law focuses on protecting the financial order and the financial security of the financial industry, but the awareness of protecting credit security is not strong. As we all know, the principle of good faith is the basic principle that market entities must follow in a market economy. The circulation of commodities, the operation of transactions, and the financing of funds all rely on the principle of integrity. It can be said that the more developed the market economy, the more important is credit security. The financial transactions between financial market entities must be truly trustworthy and fulfill their obligations. This is the principle of credit in the operation of financial markets. Financial activities are based on a high degree of credit. Without credit, financial activities will be paralyzed. It is difficult to imagine that a country with a credit breakdown will establish a mature and healthy market economy and a developed and perfect financial industry. Because of the importance of credit for the development of the financial industry, it is no exaggeration to say that credit is the life of finance. [2]

The creditworthiness of financial activities requires that any individual and legal person participating in financial activities follow the principle of good faith. Any fraud is a damage to credit and may lead to disorderly financial order. As some scholars in China believe, "fraud in the financial field has severely undermined the principle of good faith that the economy and society depend on, and has caused mutual mistrust in financing activities. This will destroy some good economic transaction systems and will eventually It will seriously shake the support points for the effective operation of the financial market. "[3] As one of the important financial activities, loan activities are based on mutual trust between the borrower and the lender. Any fraud in the loan process, regardless of its motive and purpose, causes damage to the credit that is the basis of the loan activity (ie, damage to the entity). Not only illegally possessed loan fraud and loan fraud for refinancing should be punished by penalties. Loan fraud temporarily occupied by false statements also severely damages the credibility of life like financial activities because of its fraudulent nature, so it must also be regulated by criminal law. However, because the traditional view of our country requires that the crime of fraud must have the objective of illegal possession, only focusing on the static protection of property ownership. Therefore, the current criminal law generally only stipulates the crime of loan fraud, only punishes the illegal fraud of loan fraud, and focuses on financial Protection of institutional funds security. However, these regulations cannot meet the needs of modern economic life, because modern economic life requires more dynamic protection for the circulation process of commodities, the financing process, and the transaction process. It requires criminal law to protect the safety of financial funds, It also provides strong protection for financial credit security. It only stipulates the crime of loan fraud, and only treats loan fraud that is not for the purpose of illegal possession as civil wrongdoing. This is tantamount to suggesting and encouraging people to engage in loan fraud, which may lead to the proliferation of false statements in the field of loans. This has led to a credit crisis in the financial sector. Moreover, this "for the purpose of illegal possession" is understood from the provisions, which means that the loan has been generated before the loan, but there is no stipulation in the criminal law for the conduct of illegal possession purpose during and after the loan. In fact, one of the reasons why deception and fraud in loan activities cannot be effectively curbed is that the fraudulent behavior of loans with only false statements to defraud loans and the behavior of illegal possession after the loans are not penalized. Therefore, the author believes that if the bank or other financial institution's credit funds are not obtained for the purpose of illegal possession, but in the form of fictional facts or concealed during the loan process, or the purpose of illegal possession is obtained after the loan, the credit security will be seriously damaged. Banks or other financial institutions that cause huge losses should also be included in the scope of criminal regulations. The author then analyzes this issue from the perspective of criminal procedure, in order to further explore whether the provision stipulates that "the purpose of illegal possession" is necessary.

(Three) from the perspective of criminal procedures

Since the legislation on the crime of loan fraud in Article 193 of the new Penal Code is limited to "illegal fraud of illegal possession", this requires the judiciary to have sufficient convincing evidence as to whether the subjective subjective purpose of illegal possession is. However, once the purpose of illegal possession is difficult to verify, even if the actor has obtained a loan by fraudulent acts that concealed the truth and concealed the truth, and brought large losses to the financial institution, it cannot be criminalized. In fact, the acquisition of these evidences to prove the "illegal possession purpose" can only be inferred through objective external torts, because the judicial organs cannot make subjective judgments. However, the purpose of illegal possession in judicial practice is difficult to determine. Some scholars believe that the purpose of determining illegal possession can be determined by referring to the interpretation of Article 4 (2) of the Supreme People's Court on Several Issues concerning the Application of Laws in the Trial of Fraud Cases to the interpretation of other serious circumstances and other particularly serious circumstances in Article 193 of the new Criminal Law. . [4] However, it is still difficult to get rid of the difficulty of obtaining evidence based on this. In judicial practice, there are two ways to confirm the criminal purpose of the perpetrator: First, the confession of the perpetrator, which is difficult to obtain, especially as it relates to the nature of the perpetrator's behavior, and the perpetrator will not consciously recognize the purpose of illegal possession. of. The second is the so-called judicial presumption, which is the presumption that the perpetrator's subjective illegal possession purpose is based on objective behavior. Due to the lack of certainty of the inner psychological process, this kind of judicial presumption may endanger the safety value of the disputed value protected by criminal law as an individual, and run counter to the idea of governing the country according to law. To this end, the Supreme People's Court issued the "Minutes of the National Court Work Symposium on the Trial of Financial Crimes" on January 1, 2001. The Minutes clearly listed several situations as guiding documents, such as knowing that they did not have the ability to return and massively defrauded them. Funded; escaped after obtaining funds illegally; ... undoubtedly, this provides a good reference for the work of the practice department, but because fraud crimes are intelligent crimes, the means adopted by criminals are very sophisticated, often ever-changing, several A simple enumeration can hardly cope with complicated and complicated real situations. From criminal filing, review and arrest, prosecution to trial, all aspects have been plagued by this problem, resulting in a large number of cases of loans fraud, but because there is insufficient evidence to prove that they have illegal possession for the purpose of escape from legal sanctions . As a result, there is a passive situation in which criminals frantically commit such crimes, and on the other hand, the judiciary has no good strategy to curb such crimes.

In summary, Article 193 of the new Criminal Law only stipulates that it is unreasonable to need for illegal possession and should be improved in legislation.

Second, how to deal with the "loan fraud" of the unit

Needless to say, in real life and in judicial practice, the unit uses fraudulent means (including several types of statutory frauds stipulated in Article 193 of the new Criminal Law) to defraud loans of banks or other financial institutions for the purpose of illegal possession, the amount Larger acts happen from time to time. According to reports, 13 of the 45 loan fraud cases in a southern province of China belong to unit loan fraud. [5] Due to the unit's cover of loan fraud, it is not easy to detect fraudulent means, and the success rate of fraud is very high. The amount of crime of loan fraud performed by a unit is much greater than that committed by a natural person, causing financial institutions to cause The losses are more serious and the social harm is greater. Because the new criminal law does not provide for the crime of unit loan fraud, the unit loan crime escapes the punishment of the law, which promotes the integrity of unit crime.

So, how to deal with the "loan fraud" of the unit? Theoretically, there are the following points: The first point of view is that the unit is not the statutory subject of the crime of loan fraud, and the unit's fraudulent behavior of the loan should be convicted of other crimes, not the "loan fraud." The reason for this is that Article 30 of the Criminal Law clearly stipulates that a unit's criminal responsibility is based on the premise that a certain crime is a unit crime. However, the subject of the crime of loan fraud under Article 193 of the new criminal law is a natural person rather than a unit. Therefore, if the unit has committed fraudulent loans from banks or other financial institutions, it should be punished as contract fraud. [6] The second point of view is that although the criminal law does not stipulate that the unit shall be held criminally responsible for certain acts that endanger the society, despite the collective research and decision of the unit, the criminal act committed for the unit s benefit is theoretically The subject is the unit, but as long as the act objectively meets the constitutive requirements, the failure of the unit to hold criminal responsibility for the unit according to law does not mean that the person in charge directly responsible for the unit and other persons directly responsible cannot be held criminally responsible. The reason is the theory of infringement of legal interests, that is, it is pointed out that the subject of a certain crime specified in criminal law is a natural person and the actual subject is a unit to deny the actor's responsibility. [7] That is to say, from the perspective of infringement of legal interests, regardless of whether the subject of the act is a unit or an individual, the individual who is the unit's supervisor and other responsible persons cannot evade his responsibility. The third view is that the person in charge and other directly responsible persons who pursue the direct responsibility of the unit assume that the unit constitutes a crime. If the unit does not constitute a crime, the person directly responsible for the unit's behavior does not constitute a crime. [8] They are based on statutory crimes and advocate respect for the human rights protection function of criminal law.

How to deal with "loan fraud" in judicial practice? In the "Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases" issued by the Supreme People's Court on December 16, 1996, specific provisions were made on how to deal with unit fraud, that is, "the person in charge directly responsible for the unit and other direct If the responsible person commits a fraud in the name of the unit, and the proceeds of the fraud belong to the unit, and the amount is more than 50,000 to less than 100,000, the person shall be investigated in accordance with the provisions of Article 151 of the Criminal Law Criminal liability; if the amount is between 200,000 and 300,000 members, the criminal liability of the aforesaid persons shall be investigated in accordance with the provisions of Article 152 of the Criminal Law (see note above). "This method of treatment is actually the second kind above. The opinions are consistent.

Which of the aforementioned theoretical viewpoints and the judicial interpretation of the Supreme People's Court are reasonable and reasonable? Let's do some analysis again. The first point of view is that if a unit has a loan fraud behavior, the law that constitutes "loan fraud" and "contract fraud" coincides. In fact, can this argument be established? The author believes that those who hold this view do not understand the fundamental difference between the two crimes. The biggest difference is that the object of the crime of loan fraud is limited to loans from financial institutions, excluding other funds, and the scope of the crime of contract fraud is large. Much more, for the contract. According to the first point of view, then "loan fraud" against natural persons can also be dealt with as "contract fraud", so why do we need to set up another "loan fraud"? This view is obviously unreasonable and does not take into account the legislative intent of the new criminal law to separate financial fraud. In the second point of view, the unit has carried out loan fraud, and does not investigate the criminal responsibility of the unit. It only investigates the criminal responsibility of the person in charge directly and other directly responsible persons. It is bound to punish the misconduct and indulge the main criminal. A natural person has undertaken a part of the responsibility that should be borne by the unit, which is not substantive and reasonable, and violates the legal principle of crime and punishment. The third viewpoint is based on the legal principle of crime and punishment. However, indulging crimes in this way is bound to become the driving force for the flooding of fraudulent loans by units and the serious disruption of financial order. Therefore, the author believes that Article 193 of the Criminal Law does not stipulate that the unit can be a legislative omission as the subject of the crime of loan fraud. It should be improved from the legislation as soon as possible to solve the embarrassing situation of being unable to rely on or punishing improper crimes.

Third, the legal regulation of loan fraud should be improved in legislation

The provisions of the crime of loan fraud mentioned in this article also have a problem with the world. In developed countries such as Germany and the United States, the regulations on loan fraud crimes adopt the model of criminal behavior, which is different from our country's consequence crime model. The scope of its regulations is significantly larger than the relevant regulations in China, and the protection effect is more obvious. Their loan fraud crime adopts the constitution of false statements, that is, as long as the actor makes a false statement when applying for a loan from a bank or other financial institution, the crime is established, and there is no requirement for illegal possession. Under this circumstance, a loan fraud with only false statements and no illegal possession purpose will be punished by law in Germany, the United States and other countries, but in our country it is simply treated as a civil illegal act of loan fraud. If this is the case, foreign financial institutions will inevitably feel anxious about their real interests. This may have two consequences. Either a large number of foreign financial institutions are discouraging them from withdrawing from the Chinese market. In this way, China s efforts to introduce foreign capital will undo all its successes; As a result, legislators are forced to modify relevant laws, which will put China's legislation in an embarrassing and passive situation and may even miss many good opportunities. In addition to the disadvantages mentioned above, the author believes that instead of passively amending the law, it is better to find as many connection points with international practice as possible to achieve consolidation under the existing conditions.

In terms of legislative improvement, the author believes that I can absorb and learn from all useful and progressive aspects of foreign legislation for my use. In the data collected by the author, the provisions on crimes related to loans are found in several countries, such as Germany, Russia, and the United States. There are also relevant provisions in the Criminal Code of the former Czechoslovak Republic and the enactment law of the United Kingdom. We can use these as references. But as Rousseau said, "no form of government is suitable for all countries", [9] and no law can become the universal norm for all countries in the world. Moreover, the law should maintain its continuity and stability. Summarizing various factors and examining the legislation of various countries, the author believes that Germany and Russia's provisions on loan crimes are worthy of our reference:

Article 256b (Credit fraud) of the current German Criminal Code stipulates that: 1. An application by an operating entity or enterprise regarding another operating entity or enterprise, or a false operating entity or enterprise, concerning the permission, waiver or change of credit conditions, has: One of the following acts shall be punished with a free sentence or fine of less than 3 years: (1) an economic relationship that is conducive to the lender and is of great significance for the decision on its application. A. Submit false or incomplete information, such as balance of payments, profit and loss accounts, asset summaries or appraisals, or B. Make false or incomplete reports in writing. (2) The deterioration of the economic relationship indicated in the information or report is not explained in the annex, and its judgment on the application is very important. 2. Where the creditor is automatically prevented from paying based on the conduct of the actor, it does not proceed in accordance with the first paragraph. If the payment is not due to the act of the perpetrator, as long as it makes an automatic and sincere effort to prevent payment, it will not proceed. 3. The concept in the first paragraph: (1) An operating entity or enterprise refers to a commercial enterprise that has nothing to do with its subject matter and needs to be established in a commercial manner in accordance with the mode and scope of operation; (2) Credit refers to all forms of money lending, Acceptance of loans, payment and extension of money claims, discounting of bills, guarantees, guarantees and other guarantees. [10]

It can be seen that the provisions of German criminal law on credit fraud are a crime component of an offense. It does not require the purpose of illegal possession as a necessary condition to constitute a crime. There is no doubt that the scope of this crime component is much larger than that of China, and it is reduced. In view of the difficulty of obtaining evidence by the public prosecutor's office, it is worthy of our reference.

The current Russian Criminal Code (adopted by the State Duma on May 24, 1996, effective January 1, 1997) [11] There are two crimes related to loans, namely the crime of illegally obtaining a loan and the crime of maliciously evading the payment of credit debts. The model of the former crime is similar to the provisions of Article 265b of the German Criminal Code, which combats the fraudulent behavior of obtaining a loan, regardless of whether the actor intends to possess the loan. What is different from the provisions of Article 265b of the German Criminal Code is Its establishment is based on the condition that "this kind of behavior causes huge losses". The provisions of the latter crime are intended to punish malicious acts of evading the settlement of credit debts, so that there is no possession purpose when obtaining the loan, but the behavior of illegal possession purpose after obtaining the loan also falls into the law, and it also solves the problem of difficult certification .

Different expressions of the same kind of harmful behavior in legislation and the establishment of norms based on this have formed their own characteristics in German and Russian legislation. The formation of this characteristic is an inevitable expression of national legal tradition and legal reality. However, both the "credit fraud crime" in Germany and the "illegal crime of obtaining loans" in Russia are broader in the design of the constituent elements than in our country's adjustment of the crime of loan fraud, and the prosecutor's burden of proof is correspondingly lower in the lawsuit. The Russian criminal law also specifically stipulates "the crime of maliciously evading the payment of credit debts" (Article 177), as a constituent element of the interception to delay the harmful behavior of infringing the credit funds of financial institutions. Combining domestic legislation, these two types of legislation are worthy of our reference. Therefore, on the basis of reflection on the legislation and practice of this crime, it is necessary to reconsider the scope of adjustment of this crime or other crime components that match the setting.

The author believes that to adjust the criminal law provisions on loan fraud, it can be handled as follows:

1. Repeal the original loan fraud crime, establish the "loan fraud crime", and make the following provisions: In one of the following circumstances, obtain credit funds from banks or other financial institutions by fictional facts or concealing the truth, the amount is large, Sentenced to fixed-term imprisonment of not more than five years or detention, and a fine of not less than 20,000 yuan but not more than 200,000 yuan; if the amount is large or there are other serious circumstances, the term of imprisonment is not less than five years but not more than ten years, and not less than 50,000 yuan but not more than 500,000 yuan Fines of less than RMB. If the amount is particularly large or there are other particularly serious circumstances, he shall be sentenced to more than ten years in prison or life imprisonment, and a fine of 50,000 to 500,000 yuan or confiscation of property:

(1) Fabricating false reasons for introducing funds, projects, etc .;

(2) Using false economic contracts;

(3) using false certification documents;

(4) using false proof of property rights as a guarantee or repeated guarantees in excess of the value of the mortgage;

(5) Those who borrow loans by other methods.

For the purpose of illegal possession, severe penalties shall be imposed in accordance with the provisions of this article.

If a unit commits the crime mentioned in the preceding paragraph, it shall be fined by the unit, and the person in charge directly responsible and other directly responsible persons shall be punished in accordance with the provisions of the preceding paragraph.

2. So how to deal with the fraud of obtaining loans by legal means and then generating illegal possession? The author believes that the crime of intercepting crimes in Russia can be used to establish the crime of maliciously evading loan settlement. details as follows:

(The crime of maliciously evading the loan repayment) After the loan contract expires, the borrower evades the repayment of debt by concealing property, false bankruptcy, or other methods, causing huge losses to the bank or other financial institution, and shall be sentenced to three to seven years in prison and Fines.

If a unit commits the crime mentioned in the preceding paragraph, it shall be fined by the unit, and the person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.

3. There is also a question of re-orientation of sin, that is, the attribution of new sin. Because the 1997 Criminal Law classified the crime of loan fraud into the "financial fraud" section of the "crime of undermining the socialist market economy order". If the above additions and amendments are made, it will inevitably affect the repositioning of new crimes. If these two crimes are classified as "financial fraud", it is obviously inconsistent with the original legislative intent and is a violation of the technical principles of legislation. The author believes that the most important objects infringed by these two crimes should be taken into account, namely credit and financial order, and financial order and credit as the main content of market order, their violation will inevitably cause violation of market order, so The author believes that these crimes should still be included in the chapter of the crime of sabotaging the socialist market economy, but some adjustments must be made: that is, according to the main objects violated by these crimes, they are included in the fourth section, "Financial management order crime" to uniformly regulate loan crimes such as usury refinancing, loan fraud, and malicious evasion of loan settlement. This arrangement is also more in line with the structural arrangements of criminal law.