There are three concepts here: private lending, fraudulent private lending and loan fraud.
Private lending is a simple legal relationship between borrowers and borrowers. Fraudulent private lending refers to the behavior that the borrower uses fraudulent means to fabricate facts and conceal the truth in the process of lending, but the borrower refuses to return the loan without the purpose of illegal possession; Loan fraud is a criminal offence, which not only contains all the characteristics of private lending and fraudulent private lending, but also has the subjective purpose of illegal possession and refusal to return the loan.
A complete loan fraud consists of the following elements: the borrower subjectively has the purpose of illegally possessing and refusing to return the loan+the fraudulent behavior of fabricating facts to conceal the truth+the external form of private lending+the lender falls into a wrong understanding and is deceived to dispose of his own property+the borrower obtains the property.
What needs to be understood is mainly the purpose of fraud and illegal possession.
I. Fraud
Why not talk about the purpose of illegal possession first, and then talk about fraud? Because when examining whether it constitutes fraud, fraud is often the first concern. Generally speaking, as long as there are fraudulent acts and false things in the process of borrowing money, such as using false signatures, seals, guarantees, fictitious use of funds, etc. , which constitutes a crime of fraud.
This view is one-sided and confuses the relationship between civil fraud and criminal fraud. Both of them contain fraud, but they are essentially different in the purpose of illegal possession. The purpose of civil fraud is to obtain a loan, but the perpetrator does not necessarily have the idea of illegal possession and refusal to return the loan. The purpose of criminal fraud is illegal possession and refusal to repay the loan.
Just like the difference between the crime of defrauding loans and the crime of loan fraud, both of them contain deceptive means, such as fictional loan purposes, forged guarantee documents, and bank running water. , but the subjective purpose is essentially different. In the crime of defrauding loans, we use fraudulent means to obtain loans, but whether we don't want to return them after obtaining loans depends on other factors. The crime of loan fraud aims at illegal possession, defrauding loans, not only by fraudulent means, but also by not wanting to pay them back.
This is the first point that we should pay attention to, that is, in borrowing, fraudulent means do not necessarily constitute fraud, so we should comprehensively examine whether the borrower has illegal possession and refuses to return the loan.
The second point is to pay attention to the time when fraud occurs. In the crime of loan fraud, fraud generally occurs before borrowing, and its mode is that the borrower fabricates facts, conceals the truth and commits fraud, which makes the lender fall into misunderstanding and be deceived, thus disposing of property. At this time, fraud is before lending money, and fraud is to withdraw money.
In one case, it is fraud after the completion of the loan.
There is a case 2 in Criminal Trial Reference, in which the borrower did not commit fraud when borrowing money. However, at the time of repayment, the lender demanded debts from him many times, so he concealed the fact that the house had been sold and signed the Agreement on Paying Debt with House with the lender. As a result, the lender found that the house had been sold and the agreement to pay off debts with the house could not be fulfilled, so he reported the case and was cheated.
This kind of fraud after the fact often does not constitute fraud. The reasons are: first, it does not conform to the logical relationship of fraud: that is, there is fraud first, then there is property disposal, and the victim disposes of property because of fraud. In this case, the victim did not lend money based on a false "house-to-house debt agreement", and he was not cheated when lending money.
Second, the borrower concealed the fact that the house had been sold, and signed the Agreement on Paying Debt with House. Its subjective purpose is more to meet the debt demand, which is an expedient measure, and it is not to use this debt repayment agreement to achieve the purpose of refusing to repay the loan. It also knows that the debt repayment agreement can not be actually fulfilled in the end and can only be dealt with temporarily.
To accurately understand the problem of fraud after the event, this case does not constitute fraud because there is no sequential logical relationship between fraud after the event and the victim's disposal of property.
In another case, the borrower did not commit fraud when borrowing money, but committed fraud after the loan was completed (afterwards fraud), which made the lender believe it and exempted his debt. This of course constitutes fraud. Because of fraud afterwards and misunderstanding of the borrower at this time, there is a logical relationship in the disposal of property. It is nothing more than that the way of property disposal has changed from direct delivery to debt forgiveness, and there is no difference in nature. This is essentially different from ex post facto fraud in case law.
To sum up, there are two conclusions about fraud. First, fraud does not constitute fraud; Second, whether fraud after the event constitutes fraud depends on whether there is a causal relationship with the victim's disposal of property.
Second, the purpose of illegal possession
This is the core element of fraud. There are two main ways to determine whether the actor has the purpose of illegal possession: the first is direct proof, that is, according to the confession of the actor, the actor directly admits that he has the purpose of illegal possession. The second is the presumption of crime, which infers the subjective psychological state of the perpetrator according to some objective behaviors or conditions. The so-called "behavior reflects subjective will".
In the loan fraud, in addition to fraud, we will comprehensively judge whether the borrower has the purpose of illegal possession and refusal to repay according to three factors: repayment ability, behavior after the payment is received and actual repayment behavior.
(A) repayment ability
Rule 1: Borrowers who borrow by fraudulent means have no repayment ability objectively and tend to think that they have the purpose of illegal possession.
Rule 2: If you borrow by fraudulent means, you will be able to repay when you borrow. If you refuse to repay without justifiable reasons, you will tend to think that you have the purpose of illegal possession.
Repayment ability is an objective property status of the borrower, which can be divided into repayment ability when borrowing and repayment ability when repaying according to time.
If the actor has sufficient repayment ability when borrowing money, such as owning land, real estate, equity, creditor's rights and other property sufficient to pay off debts, even if he uses fraudulent means when borrowing money, he cannot be considered as having the purpose of illegally occupying the loan, because the property under his name is sufficient to pay off debts.
On the contrary, the borrower's subjective mentality can be imagined, that is, he doesn't want to repay the loan, or he just lets himself go and is indifferent to whether to repay the loan. At this time, he tends to believe that he has the purpose of illegal possession.