1. Crime of fund-raising fraud
(A) objective behavior
Fund-raising fraud must conform to the behavior structure of fraud and make false returns. If the amount reaches more than 654.38+10,000 yuan, but it does not reach 654.38+10,000 yuan, the crime of fraud or attempted crime of fund-raising fraud shall be established.
Target audience: the public. Deception: false return. The amount reached, that is, the amount of criminal proceeds, cannot be deducted from the expenses incurred by fraud, such as advertising fees, agency fees, bribes, etc.
(2) Form of liability: Intentionally, for the purpose of illegal possession.
1. The purpose of illegal possession can only exist if illegal fund-raising is carried out by fraud. Identification of the purpose of illegal possession: the raised funds have not been used for production and operation, or they are obviously out of proportion to the scale of the raised funds and cannot be returned; Spending too much, unable to return the funds raised; Escape with fund-raising funds; Using fund-raising funds to carry out illegal and criminal activities; Evading, transferring funds, concealing property, or evading the return of funds; Hiding or destroying accounts, or going through false bankruptcy or false bankruptcy to avoid withdrawing funds; Refusing to account for the whereabouts of funds and evading the return of funds; ⑧ Other circumstances.
2. Some of them have the purpose of illegal possession, and the fund-raising involved in this part is convicted and punished for the crime of fund-raising fraud; * * * If the center of the same crime has the purpose of illegal possession and other actors have no intention or behavior of illegal possession of fund-raising, the actor with the purpose of illegal possession shall be convicted and punished for the crime of fund-raising fraud.
The difference is that there is no purpose of illegal possession: the crime of illegally absorbing public deposits. The purpose of illegal possession only happens after obtaining funds: only fraud can be established. The crime of illegally absorbing public deposits does not require cheating, but this crime requires cheating, that is, fraud. Therefore, fund-raising fraud is a felony, and illegally absorbing public deposits is a misdemeanor.
Second, loan fraud.
(A) objective behavior
1. Deception → Financial institution personnel fall into cognitive errors → Lending based on cognitive errors → Actor obtains loans and keeps them for himself.
Loan fraud: fabricating false reasons such as introducing funds and projects; Using false economic contracts; Using false documents; Using false property rights certificates as collateral or repeatedly guaranteeing beyond the value of collateral; Defrauding loans by other means.
2. Behavior object: loan. Behavior: cheating. If a bank or other financial institution fraudulently obtains a loan in the ways listed in the Criminal Law or by other means and applies for a loan, it is a case of starting and obtaining a loan.
After legally obtaining the loan, the actor can't repay the principal and interest, and conceals or transfers the collateral used for the loan by deception, so that the lender can't exercise the rights on the collateral, which is an act of simply evading the debt and does not constitute a crime; If the lender makes a mistake by deception, and then the debt is exempted, the crime of ordinary fraud (the crime of defrauding property interests) is established. If the cheating behavior of the actor in order to defraud the loan is beyond the scope of the behavior stipulated in Article 193 of the Criminal Law and has no type of involvement with the purpose of loan fraud, he shall be punished for several crimes. Whoever falsely reports the registered capital of a registered company in order to defraud the payment for goods shall be punished for several crimes.
3. The subject of the crime of loan fraud can only be a natural person. Where a unit commits loan fraud, it shall investigate the criminal responsibility of the relevant natural person in the unit for loan fraud, and shall no longer be deemed as unit contract fraud.
(2) the form of responsibility
Deliberately, the demand has the purpose of illegal possession, which means that the loan will not be repaid. Purpose of illegal possession: using someone else's name, absconding with money after lending, squandering the loan, changing the purpose of the loan at high risk, engaging in illegal activities, hiding his whereabouts, and refusing to repay the loan. The difference is that there is no purpose of illegal possession: the crime of defrauding loans; For the purpose of lending for profit: the crime of lending at high interest.
(3) the number of crimes and the problem of * *
1. Where Party A deceives Party B to provide guarantee and defraud financial institutions of loans, it shall be deemed as the crime of loan fraud against financial institutions (the object is loans) and the crime of contract fraud against guarantors (the object is property interests), and shall be punished for several crimes.
2. Where a staff member of a financial institution takes advantage of his position in credit management, fraudulently uses another person's name or fictitious name to defraud a financial institution of loans for personal ownership, he shall be punished for the crime of corruption or embezzlement. Final adjudicator of financial institution loans: According to the nature of the behavior, it may be the crime of illegally issuing loans.
3. If ordinary citizens collude with all the people in charge of loans in financial institutions to obtain loans for the purpose of illegal possession, the crime of loan fraud is not established and should be recognized as crimes such as corruption and duty embezzlement. Ordinary citizens collude with the final decision makers of financial institutions' loans. Although they may have deceived the loan officer and the department auditor, the person who took disciplinary action was not misunderstood, so the crime of loan fraud was not established. According to the purpose and nature of illegal possession, it should be recognized as corruption, duty embezzlement, illegal loan issuance and other crimes.
Third, the crime of bill fraud
(A) objective behavior
1. knowingly uses forged or altered bills of exchange, promissory notes or checks. Use refers to taking forged or altered bills as real bills and claiming bill rights from others. The essence of use is to deceive people. Whoever forges or uses bills constitutes an implicated offender in the crime of forging financial bills (Article 177) and the crime of bill fraud, and is punished as a felony. Acts outside the law do not constitute the crime of bill fraud, but may constitute the crime of fraud.
2. Bills of exchange, promissory notes and checks that are clearly invalid.
3. Fraudulent use of other people's bills of exchange, promissory notes or checks.
4. Issuing a bad check or a check inconsistent with its reserved seal to defraud property. Pay attention to the purpose of writing a bad check as a fraudulent means to defraud property and illegal possession before the establishment of this crime; Issuing a bad check is not to defraud property, but to delay the performance of debts, and the crime of bill fraud is not established; A person who defrauds others of goods first and then delivers a blank check to the other party afterwards should not be regarded as bill fraud, but only as (contract) fraud.
5. The drawer of a bill of exchange or promissory note issues a bill without capital guarantee or makes false records when issuing the bill to defraud property. False records are limited to issuing tickets, excluding endorsement, acceptance, payment and guarantee of bills.
(2) the form of responsibility
Deliberately demanding illegal possession. "Knowing" refers to paying attention to the regulations, using forged bills as others' real and effective bills by mistake, which belongs to the wrong object in misunderstanding specific facts and belongs to "using forged bills".
(3) the number of crimes
1. Stealing a check and using it: (1) Stealing a fixed check, whether it is used or not, is a crime of theft. (2) Stealing bearer or loss-reporting cheques is theft. (3) Whoever steals a blank cheque and fills in the payee and amount shall be punished as bill fraud. (4) Stealing a registered cheque and using it before and after reporting the loss belongs to the crime of bill fraud. (5) Whoever steals paper to print or forge a seal shall be deemed guilty of forging a financial ticket in the case of attempted bill fraud.
2. Whoever forges or uses bills constitutes an implicated offender in the crime of forging financial bills and bill fraud, and shall be punished as a felony.
Fourth, credit card fraud.
(A) objective behavior
Behavior object: credit card refers to the credit card held by others, including debit card with saving function only. In principle, forged and invalid credit cards are not included. Behavior: The starting point of malicious overdraft is 6,543,800 yuan; Other circumstances exceeding 5000 yuan.
1. Use a forged credit card or use a credit card with a false identity.
Only natural persons, including altered credit cards. Number of crimes: whoever forges a credit card first uses it, commits the crime of forging financial tickets and credit card fraud, and is an implicated offender. Choose a heavier punishment and generally identify the crime of credit card fraud. If you use a false identity to defraud a credit card first, and then use a credit card to defraud property, you will be convicted of credit card nuisance and credit card fraud.
The crime of obstructing credit card management is the basic crime of credit card fraud, which requires false identity to prove the cheated credit card, but the real credit card can also be the object of credit card fraud. The crime of defrauding the establishment of credit cards by simply proving false identity hinders the management of credit cards, but the crime of credit card fraud is established by using credit cards afterwards. There is no evidence to prove that it has a specific use behavior, but illegal possession, transportation, sale and purchase of forged credit cards to defraud credit cards should be established as a crime of obstructing credit card management; Those who both hinder credit card management and credit card fraud shall be punished as crimes after establishment.
2. Use an invalid credit card to defraud property. Among them, the use behavior is limited to the use of natural persons, and the use of invalid credit cards to obtain property on the machine constitutes theft.
3. Illegal cardholder: fraudulently using other people's credit cards to defraud property.
Use it after picking up someone else's credit card; Use after defrauding others' credit cards; Steal, buy, cheat or obtain other people's credit card information by other illegal means, and use it through the Internet, communication terminals, etc. Fraudulent use is based on the violation of the legitimate cardholder's will and is used with the cardholder's consent, which does not constitute a crime; Fraudulent use, no need to actually hold someone else's credit card itself.
4. The legitimate cardholder maliciously overdraws.
Malicious overdraft is an identity crime, which is only aimed at the legitimate cardholders of real and valid credit cards. If the illegal cardholder maliciously overdraws, it belongs to fraudulent use of other people's credit cards; Overdraft behavior must be carried out on people, and overdraft on ATM machines belongs to theft.
If the cardholder overdraws beyond the limit or time limit for the purpose of illegal possession, and fails to return it for more than 3 months after being urged twice by the issuing bank, it shall be deemed as malicious overdraft. Collection includes written collection and oral collection, which is limited to cardholder collection. Those who are guilty of the guarantor or the cardholder's family are not counted. The purpose of illegal possession must exist in overdraft: knowing that there is no repayment ability, but a large number of overdrafts, overdraft funds are extravagant and cannot be returned; Escape after overdraft, change contact information and avoid collection; Withdrawing or transferring funds, concealing property or evading repayment; Using overdraft funds for illegal and criminal activities; Other illegal possession of funds and refusal to return them. There is no illegal possession purpose when overdrawing, which is not a malicious overdraft; Don't want to pay back after overdraft, and don't pay back after collection, which constitutes the crime of embezzlement.
The amount is relatively large: ① credit card fraud: ≥ 5,000 yuan,