How to characterize cloned bank draft pledge and loan fraud? Although the bank staff checked the issuing bank, checked the tickets and other methods on the computer, no cloned tickets were found. So a

How to characterize cloned bank draft pledge and loan fraud? Although the bank staff checked the issuing bank, checked the tickets and other methods on the computer, no cloned tickets were found. So after deducting relevant expenses, he lent 2.7 million yuan to Company A for a period of 4 months. After that, A transferred 6,543,805 yuan from Company A or used it to repay debts, gamble, or personal squandering; Company A did not use the loan of 6,543,802,000 yuan to purchase equipment. A small part of the debt was repaid, and most of it was used by Company A D. The manager squandered... After the loan expired, the billing bank closed the case and the loan has not been recovered to this day. Objection: After this case was brought to court, there was no objection to the fact that A (B and Manager Ding handled the case separately) constituted a crime, but there were differences on how to define it: the first opinion held that A constituted the crime of loan fraud because he defrauded bank loans. The method should be punished as a crime of loan fraud according to its purpose; the second opinion should be punished as a crime of bill fraud, because A uses a cloned bill to defraud a bank loan, which is in compliance with Article 194 (1) of the Criminal Law "Knowing that it is forged or altered." The legislation stipulates that A should be convicted of the crime of bill fraud; the third opinion is that A uses a cloned money order to defraud a bank loan, which constitutes the crime of loan fraud and bill fraud at the same time, and falls within the scope of the evaluation of the law of overlap. Since the principles of general law and special law cannot be applied, the principle of law overriding the law should be considered. From the comparison of legal penalties, the crime of loan fraud is obviously a light punishment, and it is appropriate to characterize it as the crime of bill fraud. Comment: The author agrees with the third opinion. The main reason is that the "certifying documents" stipulated in Item (3) of Article 193 of the Criminal Law on the crime of loan fraud should include financial instruments, that is, bills of exchange, cashier's checks, and checks. Since the instrument has the characteristics or functions of invalidity, literature, creation and negotiability, there is no need to notify the debtor who has signed the instrument when transferring the instrument. The result of the transfer is valid for the bill debtor, and the holder can directly exercise the bill rights against the signer on the bill based on the bill. The Negotiable Instrument Law clearly stipulates that the signers of the instrument bear joint and several liability. As a kind of monetary bond, the rights to the instrument have two kinds of claims. When the first creditor's right cannot be realized, the last holder of the bill can directly exercise the right of recourse against all prior parties (including the drawer) and finally realize his rights on the face of the bill, that is to say, the right of recourse of the bill It can be jumpy and selective. Generally speaking, the circulation of bills is relatively safe and has certain proof of the creditworthiness of the borrower holding financial bills. The author believes that financial instruments should be included in “certifying documents”. Frankly speaking, holding bills is equivalent to holding cash, especially when the amount is large and inconvenient to carry, using bills for settlement is both safe and reduces a lot of trouble. In this case, note holder A used a cloned usance draft as a guarantee pledge. Since the bank staff did not identify the authenticity, he handled the loan procedures based on the real usance draft, which complied with the provisions of Item (3) of the crime of loan fraud in Article 193 of the Criminal Law and could constitute the crime of loan fraud. At the same time, the "Guarantee Law" stipulates that bills can be pledged, and the effect of rights pledge is delivery essentialism. This behavior should also comply with Item (4) of this article, "Using a false property ownership certificate as a guarantee..." and defrauding a bank loan by pledging rights, if the amount is relatively large, it also complies with the criminal composition of the crime of loan fraud. Taking a step back, even if the bills are not included in the supporting documents, the scope of Article 193, Item (5) of the Criminal Law, "Obtaining loans by defrauding others" is very broad. There is no reason to exclude the use of forged bills to defraud loans, which also constitutes a loan. Fraud. The pledge of bills inevitably involves the legal evaluation of bill fraud. In this way, there is an overlap between legal provisions and legal provisions in the scope of evaluation. This is a form of intersection, that is, there is both this and that, and it should be a matter of competing legal provisions. In order to avoid repeated evaluations, only one penalty can be imposed. Moreover, we cannot apply the principles of general law and special law to deal with it. We can only consider the principle of emphasizing law over light law. Compared with statutory sentencing, since the death penalty stipulated in Article 199 of the Criminal Law includes the crime of bill fraud and excludes the crime of loan fraud, it is more appropriate to treat it as a crime of bill fraud. It is believed that this case is a bank loan obtained through discount fraud, and it can be more appropriately classified as "other" in Item (5) of the crime of loan fraud in Article 193 of the Criminal Law. Using forged or altered bills to commit loan fraud also meets the constituent elements of the crime of bill fraud. If there is overlap or competition between the two provisions, it should be punished as a crime of bill fraud. Through the above simple analysis, whether it is determined as "using false certification documents", "using false property rights certificates as guarantee...", or endorsing the transfer to the bank for cash withdrawal, it is considered that X's behavior not only constitutes the crime of loan fraud, but also the crime of bill fraud , should be punished in accordance with the principle that the law is more important than the law. Therefore, the author agrees with the third opinion.