(1) defrauding a large amount of funds while knowing that he has no repayment ability;
(2) absconding after illegally obtaining funds;
(3) defrauding funds at will;
(4) using fraudulent funds to engage in illegal and criminal activities;
(5) evading, transferring funds or concealing property to evade returning funds;
(6) concealing or destroying accounts, or carrying out false bankruptcy or false bankruptcy to avoid withdrawing funds;
(7) other illegal possession of funds and refusal to return them. However, in dealing with specific cases, if there is evidence that the perpetrator does not have the purpose of illegal possession, it cannot be punished as financial fraud just because the property cannot be returned.
According to Article 4 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases, the amount of personal loan fraud is more than 654.38 million yuan, which is a "large amount"; If the amount of personal loan fraud is more than 5 thousand yuan, it belongs to "huge amount"; If the amount of personal loan fraud is more than 2, yuan, it is a "particularly huge amount".
However, the above-mentioned provision of "large amount" has been changed by Article 5 of the "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for the Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)" jointly issued by the Supreme People's Procuratorate and the Ministry of Public Security last year. Article 5 of the prosecution standard clearly stipulates that anyone who defrauds a bank or other financial institution of loans for the purpose of illegal possession, with an amount of more than 2, yuan, shall file a case for prosecution. Therefore, in China's current judicial practice, the standard of "large amount" of loan fraud crime should be 2, yuan, and the standards of "huge amount" and "extremely huge amount" have been implemented in accordance with Article 4 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases, that is, the personal loan fraud amount is "huge amount" and the personal loan fraud amount is more than 2, yuan. Under any of the following circumstances, Article 193 whoever defrauds a bank or other financial institution of loans for the purpose of illegal possession, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and shall also be fined not less than 2, yuan but not more than 2, yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 5, yuan but not more than 5, yuan; If the amount is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 1 years or life imprisonment, and shall also be fined not less than 5, yuan but not more than 5, yuan, or his property shall be confiscated: < P > (1) fabricating false reasons such as introducing funds and projects;
(2) using false economic contracts;
(3) using false documents;
(4) using false property rights certificates as collateral or repeatedly guaranteeing beyond the value of collateral;
(5) obtaining loans by other means.
Case analysis of loan fraud
I. Case
Defendant Geng, male, 43 years old, from Yangzhong City, Jiangsu Province, was originally the manager of the second development department of Guizhou Shenhui Real Estate Development Co., Ltd. and was arrested on August 12, 1997.
in mid-September, 1996, the defendant Geng, as the entrusted agent of the second development department of Guizhou Shenhui Real Estate Development Co., Ltd., signed a construction contract for Dongshan Residential Building with Guiyang No.1 Construction Engineering Company represented by Li Bangming, and Guiyang No.1 Construction Engineering Company undertook the Dongshan Residential Building developed by the second development department. At the same time, at Geng's request, Li Bangming opened an account with the account number of "5665" in the name of Li Bangming in Guiyang City Credit Cooperative, and deposited 51, yuan in the seventh branch of Guiyang No.1 Construction Engineering Company contracted by himself, and handed the current passbook to Geng as the project payment. After receiving the passbook, Geng personally wrote the receipt, and stamped the official seal and financial seal of the second opening department, indicating that he would return it after entering the market within one month.
On June 16th of the same month, Geng took Li Bangming's passbook to Guiyang Credit Cooperative as a mortgage loan, and signed a loan contract with the credit cooperative in the name of Li Bangming, with a term of 65438+ in September 1996. Geng set up another loan account in 1 yuan, the account number is "5673", and the credit cooperative deducted the loan interest of 1,128.32 yuan for payment on the same day.
from then until February 1th, 65438, Geng withdrew all the loans from the "5673" account. After the loan expires, Guiyang Zhu Jin Urban Credit Cooperative deducted the loan and overdue interest from the passbook mortgaged by Li Bangming. Li Bangming failed to enter the construction site at the expiration of one month, and failed to get the passbook back from Geng. Later, he inquired in the credit union and learned that the passbook had been mortgaged in his own name, so he filed a civil lawsuit with the Guiyang Intermediate People's Court. After trial, Guiyang Intermediate People's Court held that the credit union should bear civil liability for restoring the passbook to its original state without examining the loan. The court ruled that "Zhu Jin Urban Credit Cooperative of Guiyang restored Li Bangming's current savings account No.5665 to its original state (with a deposit of 51, yuan ...) on September 1999, and the judgment has come into effect. After the incident, except for recovering two mobile phones (worth 11, yuan) purchased by the defendant Geng, the rest of the money has been squandered by Geng.
the people's procuratorate of Guiyang city, Guizhou province filed a public prosecution with the Guiyang intermediate people's court for the crime of fraud committed by the defendant Geng. The defendant Geng had no objection to the main facts accused by the public prosecution agency, but argued that the money he defrauded was Li Bangming's personal property, not state property, and requested a lighter punishment.
Second, judgment
The Guiyang Intermediate People's Court held through public hearing that the defendant Geng made false guarantee for other people's property for the purpose of illegal possession, and defrauded the credit cooperatives of 36, yuan in the name of others, which constituted the crime of loan fraud, and the amount was extremely huge, which should be punished according to law. It is inaccurate for the public prosecution agency to accuse the defendant Geng of fraud and should be corrected. The defendant's excuse is untenable and will not be adopted. In accordance with the provisions of the first paragraph of Article 12 of the Criminal Law of People's Republic of China (PRC), the first paragraph of Article 1 and Article 22 of the Decision of the NPC Standing Committee on Punishing Crimes of Disrupting Financial Order, and the provisions of Article 52, Article 51, Paragraph 1 and Article 5 of the Criminal Law of People's Republic of China (PRC) in 1979, our court made a decision in 1997
1. The defendant Geng committed the crime of loan fraud and was sentenced to 15 years' imprisonment and deprived of political rights for five years.
2. Continue to recover the amount owed by the defendant Geng of RMB 349,.
After the verdict was pronounced, the defendant Geng refused to accept it and appealed on the grounds that "the fraud was private money, not intentional fraud, and the sentence was too heavy".
After the second trial, the Higher People's Court of Guizhou Province held that the appellant Geng defrauded the credit cooperatives of 36, yuan in the name of others for the purpose of illegal possession, which constituted the crime of loan fraud, and the amount was extremely huge and should be punished. Geng's appeal said that "the fraud is private money, not intentional fraud". After investigation, Geng confessed in the court of first instance that he used Li Bangming's passbook as a mortgage loan, privately engraved Li Bangming's seal and signed a loan contract with the credit union, defrauding the credit union of 36, yuan, and successively took out all the money, which was consistent with his previous statement in the public security organ, so his appeal reason could not be established. The original judgment found that the facts were clear and the evidence was sufficient, but the applicable law was improper and should be corrected. Geng's appeal was unreasonable and was not adopted. In accordance with the provisions of Article 189 (2) of the Criminal Procedure Law of People's Republic of China (PRC) and Article 12 (1), Article 193, Article 55, Article 56 and Article 64 of the Criminal Law of People's Republic of China (PRC), our court made the following criminal judgments on March 6, 1998:
The first and second criminal judgments of Guiyang Intermediate People's Court on this case were upheld, that is, the appellant was found (original). Continue to recover 349, yuan owed by Geng Shang.