Crime of illegally issuing loans (Amendment VI of the Criminal Law of People's Republic of China (PRC)): Staff of banks or other financial institutions who issue loans in violation of state regulations and the amount is huge or cause heavy losses shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and fined not less than 10,000 yuan but not more than 100,000 yuan; If the amount is especially huge or especially heavy losses are caused, he shall be sentenced to fixed-term imprisonment of not less than five years and fined not less than 20,000 yuan but not more than 200,000 yuan. Employees of banks or other financial institutions who issue loans to related parties in violation of state regulations shall be given heavier punishment in accordance with the provisions of the preceding paragraph. The subject of the crime of illegally issuing loans is a special subject, which can only be composed of Chinese-funded commercial banks, trust and investment companies, enterprise group service companies, financial leasing companies, urban and rural credit cooperatives and other financial institutions established in China to engage in loan business and their staff. No other units, including foreign-funded financial institutions (including foreign capital, Sino-foreign joint ventures, branches of foreign-funded financial institutions, etc.). ) and individuals can be the subject of the crime of illegally issuing loans. Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Public Security Organs to Jurisdicte Criminal Cases for Filing and Prosecution (2) (20 10) Article 42 [Illegal Lending Case (Article 186 of the Criminal Law)] If a bank or other financial institution and its staff issue loans in violation of state regulations and are suspected of any of the following circumstances, they shall file a case for prosecution: (1) The amount of illegally issued loans is more than one million yuan; (two) illegal loans, resulting in direct economic losses of more than two hundred thousand yuan.
Second, what is the subject of the crime of illegally issuing loans?
The crime of illegally issuing loans refers to the behavior that the staff of banks or other financial institutions issue loans in violation of state regulations, and the amount is huge or causes great losses. Employees of banks or other financial institutions who issue loans to related parties in violation of state regulations shall be given heavier punishment in accordance with the provisions of the preceding paragraph. If a unit commits the crimes mentioned in the preceding two paragraphs, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding two paragraphs. The scope of related parties is determined in accordance with the Law of People's Republic of China (PRC) Commercial Bank and relevant financial laws and regulations. The subject of the crime of illegally issuing loans is a special subject, which can only be composed of Chinese-funded commercial banks, trust and investment companies, enterprise group service companies, financial leasing companies, urban and rural credit cooperatives and other financial institutions established in China to engage in loan business and their staff. No other units, including foreign-funded financial institutions (including foreign capital, Sino-foreign joint ventures, branches of foreign-funded financial institutions, etc.). ) and individuals can be the subject of the crime of illegally issuing loans. According to Article 186 of the Criminal Law of People's Republic of China (PRC), the crime of illegally issuing loans refers to that the staff of banks or other financial institutions issue loans in violation of state regulations, and if the amount is huge or heavy losses are caused, they shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 10,000 yuan but not more than 100,000 yuan; If the amount is especially huge or especially heavy losses are caused, he shall be sentenced to fixed-term imprisonment of not less than five years and fined not less than 20,000 yuan but not more than 200,000 yuan. Employees of banks or other financial institutions who issue loans to related parties in violation of state regulations shall be given heavier punishment in accordance with the provisions of the preceding paragraph.
3. What is the subject of the crime of illegally issuing loans?
First, the crime of illegally issuing loans.
The subject of the crime of illegally issuing loans is a special subject, which can only be composed of the staff of Chinese-funded commercial banks, trust and investment companies, enterprise group service companies, financial leasing companies, urban and rural credit cooperatives and other loan institutions established in China. No other unit, including foreign-funded financial institutions (including foreign-funded and Chinese-foreign joint venture individuals), can be the subject of this crime.
Second, judicial interpretation.
Summary of the Supreme People's Court National Symposium on the Trial of Financial Crimes (No.220018)
On the crime of illegally issuing loans. Banks or other financial institutions, the loss of 0 ~ 1 10,000 yuan related to administrative regulations, can be considered as "causing significant losses"; Causing losses of more than 3 million to 5 million yuan, can be identified as "caused".
Due to the uneven economic development in various regions, the elderly in all provinces, autonomous regions and municipalities directly under the Central Government may refer to the above-mentioned amount standards or ranges and adopt standards according to local specific conditions.
The subject of this crime is a special subject. The premise can only be that the staff of banks or financial institutions are "illegal" and there is no problem of related parties. It is only in the process of lending or the consequences of causing heavy losses, which constitutes a double punishment for units and related individuals.
Criminal Law 1979 has no such provision. The conviction and punishment of "dereliction of duty" in this crime is more scientific because of the constraints of bank financial practitioners.
Article 3 Any employee of a bank or other financial institution who issues loans in violation of state regulations and the amount is huge or causes heavy losses shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 10,000 yuan but not more than 100,000 yuan; If the amount is especially huge or especially heavy losses are caused, a fine of not less than five years but not more than five years shall be imposed.
Employees of banks or other financial institutions who issue loans to related parties in violation of state regulations shall be given heavier punishment in accordance with the provisions of the preceding paragraph.
If a unit commits the crimes mentioned in the preceding two paragraphs, the person in charge who is directly responsible for it shall be punished in accordance with the provisions of the preceding two paragraphs.
The scope of related parties is determined in accordance with the Law of People's Republic of China (PRC) Commercial Bank and relevant financial laws and regulations.
The sentencing and filing of the crime of illegally issuing loans are based on the amount involved, and the verdict should be determined according to the actual amount of the crime. The crime of illegally issuing loans by banks is a serious illegal act and should be severely punished according to law.
Extended reading:
What is the determination of the crime of illegally issuing loans?
Does the crime of illegally issuing loans constitute a unit crime?
Four, under what conditions will constitute the crime of illegal loans?
Object elements. The object of this crime is the national financial management system, specifically the national loan management system. Loan is an important financial business of commercial banks and other financial institutions in China, which provides an important financial guarantee for the development of the national economy. In order to standardize the loan behavior, improve the quality of loans, ensure the safety and effectiveness of loans, and speed up the credit supply, China has formulated and promulgated a series of financial laws and regulations, such as the Law on Commercial Banks, the General Principles of Loans, and the Interim Measures for the Management of Credit Funds, which have stipulated the loan problem. For example, commercial banks and other financial institutions, as lenders, should issue loans under the guidance of national industrial policies according to the needs of national economic and social development; Lenders should strictly examine the repayment ability of borrowers, generally require borrowers to provide guarantees, and strictly examine the reliability of guarantees, and so on. If the lender does not seriously investigate the borrower's repayment ability or credit status, makes random evaluation or issues loans without approval, its behavior will not only destroy the national loan management system, but also cause the loss of national loans and affect the stability of the national financial order. The object of this crime is the loan, that is, the monetary fund provided by the lender to the borrower and repaid the principal and interest at the agreed interest rate and time limit. Loans can be in RMB or in RMB. If it is not a loan, it cannot constitute this crime. Objective elements. Objectively, this crime is manifested as an act of violating laws and administrative regulations, or granting loans to others other than related parties, causing heavy losses. 1. It is the premise and foundation of the objective aspect of this crime to issue loans to people other than related parties. If there is no act of lending money to someone other than the related party, even if there are other acts such as leaving the company without authorization, such as reimbursement of illegal expenses, which do not constitute this crime, it should also be punished as other crimes. The so-called related party, for different banks or other financial institutions, its extension will be different and needs to be clearly defined by relevant laws and regulations. As far as commercial banks are concerned, it refers to the directors, supervisors, managers, credit business personnel and their close relatives of commercial banks, as well as companies, enterprises and other economic organizations in which the above-mentioned personnel invest or hold senior management positions. The object of the loan behavior of this crime refers to other people except the above-mentioned related parties. If it is a credit loan or secured loan that is superior to other similar loans, it should not constitute this crime. If punishment is required according to law, it shall be treated as the crime of illegally issuing loans to related parties. 2. Violation of relevant laws and administrative regulations. The so-called violation of laws and regulations refers to violation of all laws or administrative regulations related to credit management, such as the Commercial Bank Law, the Guarantee Law, the General Principles of Loans, the Measures for the Administration of Loan Certificates, the Measures for the Administration of Credit Funds, and the Contract Law. If the borrower meets the loan conditions according to law, it should be examined but not examined; In accordance with the law, the borrower's credit rating and the safety, legality and profitability of the loan should be investigated and evaluated without investigation and evaluation; According to law, a loan contract should be signed with the borrower instead of a contract; Although the borrower meets the requirements, it has made a qualified decision without serious, detailed, comprehensive and in-depth examination. Knowing that the borrower does not meet the requirements, but in order to grant him a loan, he lied about the plot or concealed the truth to the leader who approved the loan; Knowing that the borrower does not meet the requirements, but because of personnel relations or accepting bribes and certain interests from the borrower, he uses his authority to grant loans to him without authorization; Violation of the provisions of the upper and lower limits of the loan interest rate of the People's Bank of China, arbitrarily raising the loan interest rate and relaxing other conditions to issue loans; Signing a loan contract, using the authority to instruct or personally fail to specify the repayment period, repayment method, liability for breach of contract and other important terms; Approving loans without authorization; Wait a minute. 3. Illegally issuing loans to people other than related parties must cause heavy losses to constitute this crime, which is an important limit to the number of this crime. If there is no actual loss, or if there is a loss, but it is not a major loss, even if there is illegal borrowing from people other than related parties, it is impossible to constitute this crime. For heavy losses, the current law does not stipulate the amount of the starting point of punishment, which has yet to be specifically explained by the Supreme People and the Supreme People's Procuratorate according to the judicial practice experience and the actual situation of such cases. Theme elements. The subject of this crime is a special subject, which can only be composed of Chinese-funded commercial banks, trust and investment companies, enterprise group service companies, financial leasing companies, urban and rural credit cooperatives and other financial institutions engaged in loan business established in China, as well as the staff of the above financial institutions. No other units, including foreign-funded financial institutions (including foreign capital, Sino-foreign joint ventures, branches of foreign-funded financial institutions, etc.). ) and individuals can be the subject of this crime. Subjective factors. Subjectively, this crime is manifested as negligence, that is, the possible heavy losses caused by the actor's illegal loan issuance are due to negligence, which is generally an overconfident negligence. As for the behavior of the actor's own loan, it is intentional, especially intentional, but this crime belongs to consequential crime, and the intentional behavior of the actor does not affect his negligence in the result, so this crime is still a negligent crime.