In judicial practice, the actor illegally obtains funds by fraudulent means, resulting in a large amount of funds that cannot be returned, and in any of the following circumstances, it can be considered as having the purpose of illegal possession:

(1) defrauding a large amount of money knowing that he has no repayment ability;

(2) absconding after illegally obtaining funds;

(3) defrauding funds at will;

(four) the use of fraudulent funds for illegal and criminal activities;

(5) Evading, transferring funds or hiding property to avoid returning funds;

(6) Concealing or destroying accounts, or carrying out false bankruptcy or false bankruptcy to avoid withdrawing funds;

(seven) other illegal possession of funds and refused to return. 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, if the amount of personal loan fraud is more than 654.38 million yuan, it is a "large amount"; If the amount of personal loan fraud is more than 50 thousand yuan, it belongs to "huge amount"; If the amount of personal loan fraud is more than 200,000 yuan, it is a "particularly huge amount".

However, the above-mentioned "large amount" has been changed by Article 50 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 50 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 20,000 yuan, shall file a case for prosecution. Therefore, in China's current judicial practice, the standard of "large amount" of the crime of loan fraud should be 20,000 yuan, while 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 amount of personal loan fraud is "huge amount" and the amount of personal loan fraud is more than 200,000 yuan.

Article 193 of the Criminal Law stipulates that under any of the following circumstances, Article 193 defrauds banks or other financial institutions of loans for the purpose of illegal possession, and if the amount is relatively large, it shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 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 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 or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated property:

(a) 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) obtaining loans by other means.

Case analysis of loan fraud

I. The 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.1August 1997 12.

1In 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, and deposited 50 1000 yuan from the seventh branch of Guiyang No.1 Construction Engineering Company, which he contracted, and gave 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 6 16 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 360,000 yuan, from September 1996 to September 16. Geng set up a loan account of 100 yuan, the account number is "5673", and the credit union deducted the loan interest of 1 128.32 yuan for payment on the same day.

From then on to 65438+February 10, 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 (deposit 50 1000 yuan ……) on September 2009 1996", and the judgment came into effect. After the incident, except for the recovery of two mobile phones (worth 1 1000 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 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.

After a public hearing, Guiyang Intermediate People's Court held that the defendant Geng, for the purpose of illegal possession, made false guarantee for other people's property and defrauded the credit union of 360,000 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. According to Article 12, paragraph 1 of the Criminal Law of People's Republic of China (PRC), Article 10, Article 22, paragraph 1 of the Decision of the NPC Standing Committee on Punishing Crimes of Disrupting Financial Order, Article 52, Article 51, paragraph 1 and Article 50 of the Criminal Law of People's Republic of China (PRC), 1979,1997 65438+2 65438.

1. Defendant Geng was convicted of loan fraud, sentenced to 15 years' imprisonment, deprived of political rights for five years, and confiscated property of RMB 50,000.

2. Continue to recover RMB 349,000 yuan owed by the defendant Geng.

After the verdict was pronounced, the defendant 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 cooperative loan of 360,000 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 360,000 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 the second paragraph of Article 189 of the Criminal Procedure Law of People's Republic of China (PRC) and the first paragraph of Article 12, 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 judgment on March 6, 2006: 1998:

Maintain the first and second criminal judgments of Guiyang Intermediate People's Court on this case, that is, the appellant (defendant in the original trial) Geng was found guilty of loan fraud, sentenced to 15 years in prison, deprived of political rights for five years, and confiscated property of RMB50,000; Continue to recover 349,000 yuan owed by Geng Shang.