Issues on judicial application of the crime of loan fraud

Take this case as an example: Legal application and defense points for the crime of loan fraud in a series of online payment crimes

1. Overview of online payment crimes

1. What is Pay online?

Online payment is realized through the network and network terminals. In recent years, third-party payment platforms such as Alipay and WeChat Pay have developed rapidly and become an indispensable part of people's lives. Moreover, third-party payment platforms such as Alipay and WeChat have expanded their service areas to online financial management, credit, payment of utility bills, etc. In addition to quick payment, it has also derived online financial products such as Yu'e Bao, Ant Huabei, and Ant Jiebei.

While the fast payment and derivative functions of third-party payment platforms serve people's lives, they inevitably bring more risks. Due to the special attributes of third-party payment platforms and the complex legal relationships involved, crimes involving online payments present characteristics that are completely different from traditional property crimes. In practice, there are often many disputes over the application of the law.

2. Main characteristics and behavioral types of cyber crimes

In general, online payment crimes have strong distortion of information exchange, concealment of behavior, widespread harm and The controversial nature of applicable laws and other characteristics.

The main types of behavior are:

(1) Illegal acquisition of property in online payment accounts

For example, using someone else’s payment account that is known in advance or illegally obtained Information, log in to other people's accounts to illegally obtain funds in the account or bank card funds associated with the account; and use prior knowledge or illegally obtain other people's online payment account information, or falsely use other people's names to open consumption or credit accounts for consumption cash-out, or use Use consumption and credit accounts opened by others to cash out consumption.

(3) Illegal use of online payment accounts for consumption or overdraft

If the online store owner colludes with the cashier, the cashier first purchases goods in the online store and uses consumer credit products to pay the online store owner. Shop owner. After the buyer confirms receipt of the goods, the funds from the consumer credit product will be transferred to the seller's account. After the seller deducts the "handling fee", the remaining balance will be returned to the buyer.

(4) False accounting in online payment accounts, etc.

(5) Use online payment accounts for payment and settlement.

If a fourth-party payment platform is illegally established and a large number of payment accounts are collected to carry out payment and settlement in the name of normal commercial transactions, relying on a legal third-party payment platform without obtaining a national payment and settlement license Business etc.

In summary, online payment crimes are relatively concentrated, involving not only common theft and fraud crimes, but also crimes such as loan fraud, credit card fraud, illegal operations, destruction of production and operations, and assistance in information network criminal activities. This article starts with typical cases of loan fraud committed through online payment, and further elaborates on the relevant legal application and defense points of the crime of loan fraud.

Two. Typical cases and analysis

Zhu was convicted of fraud, loan fraud and other first-instance criminal verdicts.

(2017) Xiang Xing Chu Zi 0921 No. 254

[Basic situation]

For example, in March 2016, the defendant Jeff came from Hunan Middle School in Changsha City. The network administrator of an Internet cafe near the Medical University obtained Chen's ID card and later provided it to the defendant Zhu Shun. Zhu Shun took Chen's ID card to apply for a mobile phone card at the Unicom Business Hall on Sanyi Road, Kaifu District, Changsha, and applied for a Minsheng Bank card at the Changsha Sifangping Branch of China Minsheng Bank on March 6, 2016. Jeff asked his girlfriend Zhou Moumou to take photos with Chen Moumou's ID card for online loan verification. After that, Zhu Shun registered on Taobao, Sina Weibo, and "Shanyin" using Chen's identity, and made the following loans with online loan companies: On June 25, 2016, he borrowed an Apple 6S mobile phone from Home Credit Consumer Finance Co., Ltd. One unit, with a consumption value of 5,688 yuan

The defendant Zhu and others fraudulently used the identity information of 11 people, including Liu, Liu, Li, and Tang, to obtain the balance of third-party payment accounts and defraud property. In the end, the court held that the defendant Zhu Shun and others used the identities of others to defraud non-financial institutions for the purpose of illegal possession, and the amount was huge

The court finally found the defendant Zhu Shun guilty of fraud and sentenced him to fixed-term imprisonment Three years and five months, guilty of loan fraud, sentenced to three years in prison, decided to execute six years in prison. The defendant Liu was sentenced to one year and five months in prison for fraud, and one year and six months in prison for loan fraud. It was decided to execute the two years and six months in prison.

[Analysis]

In this case, there are two typical defense points.

1. Defense for first-time offenders, first-time offenders, and accomplices.

The specific defender proposed that the defendant Liao Jialiang was a first-time offender, an occasional offender, and an accessory. He played a minor role in this case and the amount of the crime was relatively small. The victims of the fraud are the loan companies, not individuals, and they are returning stolen goods. After being brought to justice, he truthfully confessed the facts of the crime and requested the court to apply probation to him. In the end, although the court believed that he did not meet the conditions of probation, it partially adopted the defense opinion and ultimately gave him a lighter punishment.

2. Assist in misdemeanor defense of information network crimes.

That is to say, the defender pointed out that the defendant Zhou Jiang took the initiative to help him get a new phone card and drove Zhu Shun to their place, but he did not know what the purpose was and did not know that this was a criminal act; Zhou Jiang did not know When re-applying a phone card, there is no intention or malice to possess other people's property. After re-issuing the phone card, he did not participate in any fraudulent activities, so the defendant Zhou Jiang did not commit the crime of fraud. In the end, the court held that Zhou Jiang had repeatedly followed Zhu's arrangements to assist in the implementation of relevant criminal acts and determined that he had the purpose of illegal possession.

In the case that Zhou Jiang helped commit relevant illegal acts many times, the defender’s strategy of not admitting guilt is questionable, because it is difficult to say that it is reasonable to infer from common sense that he has committed multiple acts, but the legality of the acts cannot be doubted . However, it is doubtful that the court directly determined the purpose of illegal possession by assisting the implementation many times and thus established the crime of fraud. Repeated implementation cannot directly prove the existence of illegal possession. If there is any doubt, a judgment should be made in favor of the defendant and there is no purpose of illegal possession. In general, it is reasonable to identify Zhou Jiang’s behavior as assisting information network crimes. A defense attorney adopting a misdemeanor defense strategy from the outset, rather than a not guilty plea, may be more likely to be adopted by a judge.

Three. Other legal applications and defense points for loan fraud

1. The composition of this crime

The subject of this crime is a natural person, and the unit does not constitute this crime.

For those who commit loan fraud in the name of an organization, the relevant natural person should be punished; the subjective aspect of this crime requires direct intention and the purpose of illegal possession; the object of the infringement is the state's loan management system for financial institutions and The ownership of loans by financial institutions; objectively manifested as the act of defrauding financial institutions of loans by fabricating (fictional) facts or concealing the truth.

2. Scope of financial institutions

(1) Scope overview

The scope of financial institutions goes far beyond common institutions such as banks. According to the "Coding Standards for Financial Institutions" issued by the People's Bank of China, the types and specific scope of financial institutions are as follows:

(2) Qualification of fraudulently obtaining loans from small loan companies

According to the aforementioned coding According to the regulations, microfinance companies belong to the category of financial institutions. In judicial practice, the act of defrauding small loan companies is also characterized as the crime of defrauding loans.

According to Criminal Trial Reference Case No. 962: Small loan companies are other financial institutions established and managed with the approval of provincial government departments authorized by the banking regulatory agency. First, the approval and establishment of non-bank financial institutions can be handled by the China Banking Regulatory Commission. Second, small loan companies are established with the approval of provincial government departments authorized by the banking regulatory authority. Third, the China Banking Regulatory Commission and the People's Bank of China, as the relevant authorities of financial institutions, authorize the provincial government authorities (financial offices or related agencies) to supervise and manage the business activities of small loan companies.

3. Distinguishing key points of defense between payment fraud and payment disputes

According to relevant judicial interpretations and the spirit of the meeting minutes, if the loan is not used for the specified purpose after legally obtaining the payment, the loan will expire. If the payment is not returned, the person cannot be convicted and punished for the crime of loan fraud; if there is conclusive evidence to prove that the perpetrator did not have the purpose of illegal possession and used deceptive means to obtain the payment because he did not meet the conditions for payment, he was able to fulfill his obligation to repay the goods at the time of the incident. , or the failure to repay the money at the time of the crime is due to reasons beyond the will, such as poor management, being cheated, market risks, etc., the crime of loan fraud should not be convicted and punished.

The aforementioned situations occur frequently in practice, and defenders must pay special attention to the key points of the innocence defense. Related Q&A: Does the coding standard for financial institutions come from the China Banking Regulatory Commission or the People's Bank of China? On September 19, 2014, the People's Bank of China officially released the "Coding Standards for Financial Institutions" financial industry standards.

The "Coding Standards for Financial Institutions" was finally formed after full research, material compilation, standard development, expert review, and extensive solicitation of opinions. The "Financial Institution Coding Standards" stipulates the coding objects, coding structure and representation form of financial institution codes, covering various types of institutions such as banking, securities and futures industries, insurance industries, trading and settlement financial institutions, and financial holding companies. Notice of the People's Bank of China on Issuing the "Coding Standards for Financial Institutions" Yinfa (2009) No. 363 The Shanghai Headquarters of the People's Bank of China, all branches, business management departments, central branches in provincial (capital) cities, all policy banks, state-owned commercial banks, joint-stock companies Commercial banks, Postal Savings Bank of China, and various financial asset management companies: To unify the coding methods and methods of financial institutions, strengthen the interconnection and interoperability between information systems, improve the efficiency of information sharing, and standardize the People's Bank of China and financial institutions The financial institution coding used in the new construction, development, upgrade and transformation of information systems and data warehouses ensures the authenticity, accuracy and completeness of financial institution coding information. The People's Bank of China has compiled the "Financial Institution Coding Standards", which are now issued to you. The Shanghai headquarters of the People's Bank of China, all branches, business management departments, and central branches in provincial (capital) cities are requested to forward this notice to relevant financial institutions within their jurisdiction. Attachment: Coding Standards for Financial Institutions People's Bank of China November 30, 2009 Attachment Coding Standards for Financial Institutions (omitted) Related questions and answers: How to identify scam companies in the financial industry?

At present, all financial institutions in the country are licensed to operate, that is to say, formal financial institutions all have financial business licenses. This identification is very simple, see if it belongs to the regulatory agency under the One Bank and Two Conferences. At present, regulatory agencies are divided into two parts. One part is under the China Banking and Insurance Regulatory Commission, such as banks, insurance companies, and trust companies. Some are under the China Securities Regulatory Commission, such as securities companies, futures companies, and fund companies.

There are also some companies that are under the registration system, such as private equity funds.

There are channels for querying these companies. The official websites of the China Banking and Insurance Regulatory Commission and the China Securities Regulatory Commission have lists of institutions for query. Private equity companies can check on the official website of the Asset Management Association.

In 2010, the People's Bank of China issued the "Coding Standards for Financial Institutions" (hereinafter referred to as the "Standards"), which unified the classification standards of China's financial institutions from a macro level and clarified the coverage of China's financial institutions for the first time and defined The specific composition of various types of financial institutions has been clarified, and the statistical coding methods and methods of financial institutions have been standardized.

The "Standards" classify financial institutions:

Monetary authorities

1. People's Bank of China;

2. National Foreign Exchange Authority.

Regulatory authorities

1. China Banking and Insurance Regulatory Commission;

2. China Securities Regulatory Commission;

Banking deposits Financial institutions

1. Banks;

2. Urban credit cooperatives (including cooperatives);

3. Rural credit cooperatives (including cooperatives);

4. Rural capital mutual aid cooperatives;