What is Truth in Lending?

According to Article 193 of the Criminal Law of the People's Republic of China, the crime of loan fraud refers to the fabrication of false reasons such as the introduction of funds and projects for the purpose of illegal possession, the use of false economic contracts, the use of false certification documents, the use of False property rights certificates are used as guarantees, repeated guarantees in excess of the value of the collateral, or other methods to defraud banks or other financial institutions of loans or large amounts. Loan fraud is a financial crime.

According to Article 193 of the Criminal Law of the People's Republic of China, the crime of loan fraud refers to the fabrication of false reasons such as the introduction of funds and projects for the purpose of illegal possession, the use of false economic contracts, the use of false certification documents, the use of False property rights certificates are used as guarantees, repeated guarantees in excess of the value of the collateral, or other methods to defraud banks or other financial institutions of loans or large amounts. Loan fraud is a financial crime.

Chinese name

Loan fraud

Purpose

Illegal possession

Belongs to

Article 193 of the Criminal Code

Types of

Financial crime

According to the "The Supreme People's Court" held in Changsha, Hunan Province, from September 20 to 22, 2000,

Article 193 of the Criminal Law stipulates that Article 193 has one of the following circumstances. The purpose of illegal possession is to defraud a bank or other financial institution of a loan. Imprisonment or detention, and a fine ranging from 20,000 to 200,000; if the amount is huge or there are other serious circumstances, a fixed-term imprisonment of five to ten years and a fine of 50,000 to 500,000; If it is particularly huge or has other particularly serious circumstances, it 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 such as the introduction of funds and projects;

(2) using false economic contracts;

(3) using false certification documents;

(4) using false proof of property rights as a guarantee or repeated guarantees exceeding the value of the collateral;

(5) Fraudulent loans by other methods.

Case study of loan fraud

I. The merits

Defendant: Geng, male, 43 years old, born in Yangzhong City, Jiangsu Province, formerly the manager of the Second Development Department of Guizhou Shenhui Real Estate Development Co., Ltd. Arrested on 12 August 1997.

In mid-September 1996, the defendant, Geng Mou, signed the Dongshan residential building with Guiyang No. 1 Construction Engineering Company represented by Li Bangming as the agent appointed by the Second Development Department of Guizhou Shenhui Real Estate Development Co., Ltd. The "Construction Contract for Construction Project" is the construction of the Dongshan residential building developed by the Second Development Department of Guiyang First Construction Engineering Company. At the same time, at the request of Geng, Li Bangming opened an account in Guiyang Jinzhu City Credit Co., Ltd. under the name of Li Bangming, with an account number of "5665". Into the project, and gave the current passbook of this section to Geng as a project security deposit. After receiving the passbook, Geng personally wrote the receipt and stamped the official seal and financial seal of the Second Development Department, stating that it will be returned after entering the site within one month.

On the 16th of the same month, Geng took Li Bangming's passbook to Guiyang Jinzhu City Credit Cooperative as a mortgage loan, used the private seal of Li Bangming (the private seal was engraved as "Li Bangming"), and in the name of "Li Bangming" with the credit union A loan contract was signed with a total loan of 360,000 yuan, with a term from September 16, 1996 to December 16, 1996. Mr. Geng opened a separate loan account with 100 yuan, and the account number was "5673". The credit union deducted 11,128.32 yuan in loan interest on the same day for provision.

From then until December 10, Geng Mou successively withdrew all the loans from his "5673" account. After the loan term expired, Guiyang Jinzhu City Credit Cooperative deducted the loan and overdue interest from the mortgaged passbook of Li Bangming. Li Bangming failed to enter the construction site due to the expiry of one month. He failed to retrieve the passbook from Geng, but after consulting the credit cooperative, he learned that the passbook had been mortgaged by another person in his own name, and then filed a civil lawsuit with the Guiyang Intermediate People's Court. . The Guiyang Intermediate People's Court concluded that the credit cooperatives had not been able to properly review the loans and should bear the civil responsibility for restoring the passbook. The court ruled: "Guiyang Jinzhu City Credit Cooperative restores Li Bangming's current savings account at No. 5665 to its original state on September 16, 1996 (deposit of 501,000 yuan) ...", the judgment has already come into effect. After the incident, in addition to recovering the defendant Geng Mou's two mobile phones (valued at 11,000 yuan) purchased with stolen money, the rest of the stolen money has been squandered.

Guiyang People's Procuratorate of Guizhou Province has filed a public prosecution with Guiyang Intermediate People's Court for the crime of fraud by the defendant Geng. The defendant Geng Mou had no objection to the main facts charged by the public prosecutor's office, but argued that the money he had defrauded was Li Bangming's personal property and not state property, and asked for lenient punishment.

Judgment

The Guiyang Intermediate People's Court, after a public hearing, held that the defendant Geng had fraudulently secured the property of another person's property to obtain a loan of 360,000 yuan from a credit union for the purpose of illegal possession, and his behavior had constituted a crime of loan fraud, and The amount is particularly huge and should be punished according to law. The public prosecution agency charged that the defendant Geng was guilty of fraud and was not accurate and should be corrected. The defendant's justification was untrue and was not accepted. The court complied with Article 12, paragraph 1, of the Criminal Law of the People's Republic of China, Article 10 of the Decision of the Standing Committee of the National People's Congress on Punishment of Crimes undermining the Financial Order, Article 22, paragraph 1, and the 1979 " The Criminal Judgment of the People's Republic of China on Article 52, Article 51, Paragraph 1, and Article 50 on December 1, 1997 was as follows:

1. The defendant, Geng, was guilty of loan fraud and sentenced to 15 years in prison, five years of deprivation of political rights, and confiscation of RMB 50,000.

2. Continue to recover RMB 349,000 of unpaid money owed by the defendant Geng.

After the sentence was pronounced, the defendant Geng refused to accept and appealed on the grounds that "the fraud was private money, not intentional fraud, and the sentencing was too heavy."

The Guizhou Provincial Higher People's Court concluded that the appellant, Geng, fraudulently credited a credit union with a loan of 360,000 yuan for the purpose of illegal possession, which constituted a crime of loan fraud and the amount was particularly large and should be punished. According to Geng's appeal, "the fraud was private money, not intentional fraud." After investigation, Geng confessed in the first instance that he used Li Bangming's passbook as a mortgage loan and engraved the Li Bangming seal to sign a loan contract with a credit union. The credit union took a loan of 360,000 yuan and took out all of the funds, which is consistent with its previous confession in the public security organs, so its grounds of appeal cannot be established. The original judgment found that the facts were clear and the evidence was sufficient, but the applicable law was inappropriate and should be corrected. Geng's appeal was unreasonable and was not accepted. The court complied with Article 189 (2) of the Criminal Procedure Law of the People's Republic of China, Article 12, Paragraph 1, Article 193, and 55 of the Criminal Law of the People's Republic of China. The provisions of Articles 56, 56 and 64 of the following criminal sentences were issued on March 6, 1998:

To maintain the first and second items of the criminal judgment of the Guiyang Intermediate People's Court in this case, that is, the appellant (the defendant of the original trial) Geng committed the crime of loan fraud, sentenced to 15 years in prison, deprived him of political rights for five years, and confiscated property. RMB 50,000; continue to recover Gengmou's outstanding debt of RMB 349,000. ^[3]

The crime of contract fraud and loan fraud, although both are fraudulent crimes of defrauding each other's property for the purpose of illegal possession, but there are essential differences between the two:

1. The objects of the two violations are different. Although both infringe on complex objects and include infringements on property ownership, the focus is different. The subject of the crime of contract fraud is mainly the contract supervision system; the subject of the crime of loan fraud is mainly the financial management order.

2. Occurrences of the two are different. The crime of contract fraud occurred in the process of signing and performing the contract; the crime of loan fraud occurred in the process of the actor's loan to a bank or other financial institution.

3. The direct targets of the two violations are different. The object of direct crime of contract fraud is the property or loan of the other party; and the object of crime of loan fraud is the loan of bank or other financial institution.

The crime of contract fraud and the crime of loan fraud have an inclusive overlap in the provisions of the law, that is, the phenomenon of competition between laws. Adhere to the principle that special law is superior to general law. Because loan contracts are special contracts compared to general contracts, the crime of using a false economic contract to defraud a bank or other financial institution of loan fraud is "special law" compared to the contract fraud crime. When the laws and regulations are in conflict, the crime of loan fraud is given priority. For example, a criminal gang headed by Qian Mou, in order to deceive a huge sum of money to flee abroad, forged a guarantee contract and applied for a loan from a cooperative development bank in the name of a city economic development zone stock limited development company. Due to the scrutiny of bank staff, Qian agreed to flee abroad after obtaining a huge loan of 200,000 yuan. In this case, the criminal group led by Qian Mou both committed in the process of signing and fulfilling the contract, and defrauded the bank loan by deception, thus violating the criminal law related to general fraud, contract fraud, The provisions of the crime of loan fraud have brought about the phenomenon of competition between laws and regulations. For the behavior of Qian and others, the crime of loan fraud should be used. ^[4]