Sentencing standard of the crime of illegally issuing loans
According to judicial practice, if the amount of illegal loans is more than one million yuan, or the amount of direct economic losses is more than two hundred thousand yuan, it should be prosecuted. According to the first paragraph of Article 186 of the Criminal Law, whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall 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.
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.
Constitutive elements of the crime of illegally issuing loans
(1) the object.
The national financial management system violated by the crime of illegally issuing loans is specifically the national loan management system.
The object of this crime is loans from banks or other financial institutions.
(2) objective aspects
The objective manifestation of this crime is the act of issuing loans in violation of state regulations, with a large amount or causing heavy losses.
"Violation of state regulations" refers to violation of all laws or administrative regulations related to credit management, such as the Commercial Bank Law, the Civil Code, the General Principles of Loans, the Measures for the Administration of Loan Certificates, the Measures for the Administration of Credit Funds and the Civil Code.
(3) Main aspects
The subject of this crime is a special subject, which can be a natural person or a unit. The main units include 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. Any other unit, including foreign-funded financial institutions (including foreign capital, Sino-foreign joint ventures, branches of foreign-funded financial institutions, etc.). ) and individuals cannot be the subject of this crime.
(4) Subjective aspects
Subjectively, the crime of illegally issuing loans is generally manifested as negligence, that is, the actor's possible heavy losses due to his illegal issuance of loans are due to negligence, and this negligence is generally overconfident, that is, the actor fails to foresee the possible damage results caused by his behavior of issuing loans in violation of state regulations, or, although he did, credulity can be avoided.
Under certain conditions, intentionally may also violate the crime of illegally issuing loans. That is, although the actor has foreseen that his behavior of issuing loans in violation of state regulations may lead to harmful results, he indulges or actively pursues it.
Judicial Interpretation of Private Lending by the Supreme Court in 2022
Private lending has a long history, and it has existed since ancient times, but it may not be called private lending at that time. Nowadays, there is a growing trend of private lending in China. After all, it is safer to apply for a loan from a bank, but the procedures are complicated and the conditions are strict. Therefore, many people will choose to apply for private lending when they cannot apply for bank loans. In this regard, China has also made corresponding judicial interpretation provisions. The following small series brings the contents of the Supreme Law on judicial interpretation of private lending to help you understand.
Provisions of the Supreme People's Government on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases
Article 1 The term "private lending" as mentioned in these Provisions refers to the financing behavior between natural persons, legal persons and unincorporated organizations.
These Provisions shall not apply to financial institutions and their branches established with the approval of the financial supervision department and engaged in loan business, which are triggered by the issuance of loans and other related financial businesses.
Article 2 When a lender brings a private lending lawsuit to the people's court, it shall provide creditor's rights certificates such as IOUs, receipts, IOUs, and other evidence that can prove the existence of the legal relationship between lending and borrowing.
If the creditor's rights certificate such as IOUs, receipts and IOUs held by the parties does not specify the creditor, and the party holding the creditor's rights certificate brings a private lending lawsuit, the people's court shall accept it. The defendant raised a factual defense against the plaintiff's creditor qualification, and the people's court ruled that the plaintiff did not have the creditor qualification after examination, and rejected it.
Article 3 Where the borrower and the lender have not agreed or clearly agreed on the place of performance of the contract, and no supplementary agreement has been reached afterwards, and the place of performance of the contract cannot be determined according to the relevant provisions of the contract or trading habits, the place of performance of the contract shall be the place where the party receiving the money is located.
Article 4 Where the guarantor provides joint liability guarantee for the borrower and the lender is only the borrower, the people's court may not add the guarantor as a co-defendant; If the lender is only the guarantor, the people may add the borrower as the defendant.
Where the guarantor provides general guarantee for the borrower and the lender is only the guarantor, the people's court shall add the borrower as the defendant; If the lender is only the borrower, the people's court may not add a guarantor as a co-defendant.
Article 5 If a people's court finds that private lending itself is suspected of illegal fund-raising and other crimes after filing a case, it shall make a ruling to reject it and transfer the clues and materials suspected of illegal fund-raising and other crimes to the public security or procuratorial organs.
If the public security and procuratorial organs refuse to file a case, or the investigation ends and the case is dismissed, or the procuratorial organs make a decision, or the people's effective judgment determines that it does not constitute a crime such as illegal fund-raising, and the parties bring a lawsuit to the people with the same fact, the people shall accept it.
Article 6 If clues and materials related to private lending cases but not the same facts are found after the case is filed, the private lending cases shall continue to be tried, and the clues and materials suspected of illegal fund-raising and other crimes shall be transferred to public security and procuratorial organs.
Article 7 The basic facts of a private lending case must be based on the trial results of a criminal case. If the criminal case has not been concluded, the people's court shall make a ruling to suspend the proceedings.
Article 8 If the borrower is suspected of committing a crime or is found guilty by an effective judgment, and the lender requests the guarantor to bear civil liability, the people's court shall accept it.
Judicial interpretation of the crime of illegally issuing loans 202 1
The judicial interpretation of the crime of illegally issuing loans is as follows: first, the actor can't be intentional subjectively. If it is intentional, it may constitute other crimes, so it can only be a subjective fault. Secondly, if the perpetrator commits this act and illegally issues loans of more than RMB100000 or causes economic losses of more than RMB 200,000, it constitutes a crime. According to the relevant laws and regulations, it can be known 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 above provisions.
Criminal law of the people's Republic of China
Article 186
Staff of banks or other financial institutions who issue 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, 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. 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.
Judicial interpretation of loan crime
Judicial interpretation: Article 50 of the Provisions of the Ministry of Public Security of the Supreme People's Procuratorate on the Standards for Public Security Organs to Jurisdicte Criminal Cases for Filing and Prosecuting stipulates that loans to banks or other financial institutions with the amount of more than 20,000 yuan for the purpose of illegal possession shall be filed for prosecution. The law stipulates: Article 193 of the Criminal Law of People's Republic of China (PRC): Under any of the following circumstances, if a loan is made to a bank or other financial institution for the purpose of illegal possession, if the amount is relatively large, it shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine of not less than 20,000 yuan but not more than 200,000 yuan shall be imposed; 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 50,000 yuan but not more than 500,000 yuan; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years, fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated property: (1) fabricating false reasons such as introducing funds and projects; (two) the use of false economic contracts; (3) using false documents; (four) the use of false proof of property rights as a guarantee or repeated guarantee beyond the value of collateral; (5) Loans in other ways.
How to explain the loan in law?
I. General principles
Loan refers to a commercial activity in which the lender provides monetary funds to the borrower, and the borrower repays the principal and interest at the agreed interest rate and time limit. In the legal relationship of loan contract, the borrower is the borrower and the lender is the lender.
Lawyers' business in bank loans mainly includes: examining borrowers and their legal qualifications; Participate in the drafting, negotiation or review of loan agreements; Providing legal advice and services to both borrowers and borrowers during the performance of the loan contract; Solve the problems in the performance of the loan contract. By participating in bank loan activities, lawyers help borrowers and borrowers to sign and perform loan contracts according to law, which can help the parties achieve their respective business objectives, prevent and resolve various legal risks in loan business, and promote the smooth development of loan business.
According to the General Principles of the Civil Law, the Contract Law, the General Principles of Loans, the Law on Commercial Banks, and the relevant provisions and judicial interpretations of the China Banking Regulatory Authority (this article refers to the People's Bank of China or the China Banking Regulatory Commission) and the Supreme People's Government, these Operating Guidelines are formulated. It is mainly applicable to the loan business of domestic commercial banks providing RMB funds to domestic enterprises, aiming at providing general guidance for lawyers to handle such loan business. These operating guidelines are not applicable to financing activities with special arrangements such as syndicated loans, project financing and secured loans.
Second, the concept and types of loans
(A) the concept of loans
Loan refers to an asset business in which a financial institution is in the position of a creditor and lends monetary funds (cash or cash claims) to others under the condition of repaying the principal and interest regularly or at any time. In addition, the term loan usually refers to the money lent by the lender to the borrower.
Most of the monetary funds collected by financial institutions (especially commercial banks) in the form of deposits and other liabilities are used for social reproduction through loans. Therefore, it is of great significance to manage the loan business of financial institutions according to law and standardize the contractual relationship between borrowers and borrowers for supporting social and economic development, improving the economic benefits of financial institutions and ensuring the security and stability of the financial industry.
Since the reform and opening up, the reform of credit management system has been an important part of China's financial system reform. At the same time, many relevant laws and administrative regulations have stipulated that financial institutions should carry out loan business, and the legal system of loan contracts has been gradually established and improved. The existing laws and administrative regulations on loan management and loan contracts in China mainly include: (1)1995 People's Republic of China (PRC) Commercial Bank Law adopted at the 13th meeting of the Eighth NPC Standing Committee; (2) Economic Contract Law of the People's Republic of China, which was adopted at the fourth meeting of the Fifth NPC Standing Committee in February 200219813, and revised for the third time by the Eighth NPC Standing Committee in September 2002; (3)1On February 28th, 985, the State Council issued the Regulations on Loan Contracts; (4) General Principles of Loans issued by China People's Bank on June 28th, 1995.
(2) loan type
According to several commonly used standards, loans can be divided into the following categories:
1. Self-operated loans, entrusted loans and special loans. Self-operated loan refers to the loan independently issued by the lender with funds raised by legal means; The risk shall be borne by the lender, and the principal and interest shall be recovered by the lender. Entrusted loans refer to loans provided by clients such as government departments, enterprises, institutions and individuals, and issued, supervised and recovered by lenders (i.e. trustees) according to the loan object, purpose, amount, term and interest rate determined by clients; The lender (trustee) only collects the handling fee and does not bear the loan risk; Unless otherwise stipulated by the state, the lender (trustee) shall not advance funds to the client. Specific loans refer to loans granted by wholly state-owned banks with the approval of the State Council after taking corresponding remedial measures for the losses that may be caused by loans.
2. Short-term loans, medium-term loans and long-term loans. Short-term loans are loans with a loan term of less than one year (including one year); Medium-term loans refer to loans with a loan term of more than one year (excluding one year) and less than five years (including five years); Long-term loans refer to loans with a loan term of more than five years (excluding five years).
3. Credit loans and secured loans. Credit loan refers to a loan issued by virtue of the credit of the payer. Secured loans include mortgage loans, mortgage loans and. Guaranteed loan refers to a loan issued by a third party in the form of guarantee stipulated in the Guarantee Law of People's Republic of China (PRC), which promises the borrower to assume general guarantee liability or joint liability according to the agreement; Mortgage loan refers to the loan issued with the property of the borrower or a third party as collateral according to the mortgage method stipulated in the Guarantee Law of People's Republic of China (PRC); Refers to the loan issued with the movable property or rights of the borrower or a third party as pledge according to the provisions of the Guarantee Law of People's Republic of China (PRC).
4. Working capital loans and fixed assets loans. Working capital loan refers to the loan that the lender needs to give the borrower reasonable working capital in the process of production and operation; Fixed assets loans are loans issued by lenders to meet the borrower's capital needs for the maintenance, renovation, new construction and expansion of fixed assets, including special fund loans, technical renovation loans and capital construction loans.
5. Personal loans and syndicated loans. A separate loan is a loan issued by a specialized financial institution as a lender to a borrower; Syndicated loan is a loan granted by several financial institutions to borrowers according to their respective shares according to the loan agreement. The purpose of adopting the form of syndicated loan is to meet the borrower's demand for huge funds and spread the loan risk among lenders.
6. Renminbi loans and foreign currency loans. Rmb loans are RMB loans issued by lenders to borrowers; Foreign currency loans are foreign currency loans issued by lenders to borrowers.