Judicial application of loan fraud

Taking the case as an example: the legal application and defense points of the crime of loan fraud in the series of online payment crimes

First, an overview of online payment crimes

1. What is online payment?

Network payment is realized by the network terminal through the network. 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. In addition, third-party payment platforms such as Alipay and WeChat have expanded their services to online financial management, credit and payment of utility fees. In addition to fast payment, it also derived online financial products such as Yu 'ebao, Ant Flower Garden and Ant Borrowing.

The fast payment and derivative functions of the third-party payment platform not only serve people's lives, but also inevitably bring more risks. Due to the particularity of the third-party payment platform and the complexity of the legal relationship involved, the crimes involving online payment show completely different characteristics from the traditional property crimes, and there are often many disputes in the application of the law in practice.

2. The main characteristics and behavior types of cyber crime.

Generally speaking, online payment crime has the characteristics of strong distortion of information exchange, concealment of behavior, extensive harm and controversial application of law.

The main behavior types are:

(1) Illegally obtaining the property in the online payment account

For example, using the information of someone else's payment account that is known in advance or illegally obtained, logging into someone else's account to illegally obtain the funds in the account or the funds in the bank card associated with the account; And using prior knowledge or illegal access to other people's online payment account information, or using other people's names to open consumption and credit accounts for cash, or using other people's already opened consumption and credit accounts for cash.

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

If the online shop owner colludes with the cashier, the cashier first buys goods in the online shop and pays them to the online shop owner with consumer credit products. After the buyer confirms the receipt of the goods, the funds of consumer credit products will be transferred to the seller's account, and the remaining funds will be returned to the buyer after the seller deducts the "handling fee".

(4) False bookkeeping of online payment accounts, etc.

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

For example, illegally establishing a fourth-party payment platform, relying on a legal third-party payment platform to collect a large number of payment accounts to carry out payment and settlement business in the name of normal commercial transactions without obtaining a national payment and settlement license.

To sum up, online payment crimes are relatively concentrated, involving not only common crimes of theft and fraud, but also crimes such as loan fraud, credit card fraud, illegal operation, destruction of production and operation, and helping information network criminal activities. Starting with the typical cases of loan fraud established by online payment, this paper further expounds the relevant legal application and defense points of loan fraud.

Two. Typical cases and analysis

Zhu committed fraud, loan fraud and other first-instance criminal judgments.

(20 17) Xiangxing Zi Chu No.0921254

[Basic information]

For example, in March 2006, the defendant Jeff obtained Chen's ID card from the network administrator of the Internet cafe near Hunan University of Chinese Medicine in Changsha, and provided it to the defendant Zhu Shun. On March 6th, 20 16, Zhu got a mobile phone card in Unicom Business Hall of Sanyi Road, Kaifu District, Changsha, and a Minsheng Bank card in Changsha Sifangping Sub-branch of China Minsheng Bank. Jeff asked his girlfriend Zhou Moumou to take photos with Chen Moumou's ID card for online loan verification. After Zhu Shun used Chen's identity to register on Taobao, Sina Weibo and "Flash Silver", he made the following loans in the online loan company: 2065438+on June 25th, 2006, he borrowed an Apple 6S mobile phone from Gitzo Consumer Finance Co., Ltd., with a consumption value of 5688 yuan.

Defendant Zhu and others used the identity information of Liu, Li, Tang and others 1 1 to obtain the balance of a third-party payment account and defraud property. In the end, the court held that the defendant Zhu and others fraudulently used the identity 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 three years and five months in prison, three years in prison and six years in prison for loan fraud. The defendant Liu was sentenced to one year and five months in prison for fraud, one year and six months in prison for loan fraud, and decided to execute two years and six months in prison.

[analysis]

In this case, there are two typical defense points.

1. The defense of first offenders, * * offenders, accomplices, etc.

That is, the specific defender suggested that the defendant Liao Jialiang was a first-time offender, an occasional offender and an accessory, which played a secondary role in this case and the amount of the crime was small. The victims of fraud are loan companies that return stolen goods, not individuals. After being brought to justice, he truthfully confessed the facts of the crime and asked the court to apply probation to him. In the end, although the court held that he did not meet the conditions of probation, he partially adopted the defense opinion and finally gave him a lighter punishment.

2. Help maintain the misdemeanor of information network crime.

That is, the specific defender suggested that the defendant Zhou Jiang offered to reissue his calling card and drove Zhu Shun to them, but he didn't know what the purpose was and whether it was a criminal act. Zhou Jiang reissued the phone card without knowing it, and there was no subjective intention or malicious occupation of other people's property. Defendant Zhou Jiang did not participate in any fraudulent activities after changing the calling card, so it did not constitute fraud. In the end, the court held that Zhou Jiang repeatedly listened to Zhu's arrangement to assist in the implementation of related criminal acts and found that he had the purpose of illegal possession.

In the case that Zhou Jiang has repeatedly helped to commit relevant illegal acts, the strategy of the defender not pleading guilty is questionable, because it is hard to say that it is reasonable to infer from common sense that he has committed many acts, but the legality of the acts is beyond doubt. However, the court directly identified the purpose of illegal possession through repeated help, thus establishing the crime of fraud, which is doubtful. Repeated implementation cannot directly prove the existence of illegal possession. If in doubt, a judgment should be made in favor of the defendant, and there is no purpose of illegal possession. Generally speaking, it is reasonable to identify Zhou Jiang's behavior as helping information network crime. Defenders adopt the strategy of misdemeanor defense from the beginning, rather than innocent defense, which may be more easily adopted by judges.

Three. Other legal application and defense points of loan fraud

1. Constitution of this crime

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

For the implementation of loan fraud in the name of the unit, the relevant natural persons shall be punished; Subjectively, this crime requires direct intention, with the purpose of illegal possession; The object of infringement is the loan management system of the state to financial institutions and the ownership of loans by financial institutions; Objectively speaking, it is the act of fabricating facts or concealing the truth to defraud financial institutions.

2. Scope of financial institutions

(1) Scope Overview

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

(2) The nature of the act of defrauding small loan companies.

According to the above coding norms, microfinance companies belong to the category of financial institutions. In judicial practice, it is also characterized as the crime of defrauding small loan companies.

According to the criminal trial reference case No.962, microfinance companies are other financial institutions authorized by the banking regulatory authorities and approved by provincial government departments. First, the CBRC can be responsible for the examination and approval of the establishment of non-bank financial institutions. Second, the microfinance company was established with the approval of the provincial government department authorized by the banking regulatory agency. Third, the CBRC and the People's Bank of China, as the relevant authorities of financial institutions, authorize provincial government authorities (financial offices or related institutions) to supervise and manage the business activities of microfinance companies.

3. Distinguish between payment fraud and payment disputes.

According to the relevant judicial interpretation and the spirit of meeting minutes, if the loan is not used according to the prescribed purpose after legally obtaining the money and the money is not returned at maturity, it cannot be convicted and punished for the crime of loan fraud; There is indeed evidence to prove that the actor did not have the purpose of illegal possession, obtained the payment by deception because he did not have the payment conditions, and was able to fulfill the obligation of returning the goods when committing a crime, or could not return the payment when committing a crime due to reasons beyond his will, such as mismanagement, fraud and market risk. And should not be convicted and punished for loan fraud.

There are many cases mentioned above in practice, and defenders should pay special attention to the main points of innocent defense.

Related questions and answers: Is the coding standard of financial institutions banking supervision or people's bank of China? On September 2014 19, the People's Bank of China officially issued the financial industry standard Code of Financial Institutions. After full investigation, material arrangement, standard formulation, expert review and extensive consultation, the Code of Financial Institutions was finally formed. The Code Specification for Financial Institutions stipulates the coding object, coding structure and expression form of financial institution codes, covering banks, securities and futures, insurance, transaction settlement financial institutions, financial holding companies and other institutions. Notice of the People's Bank of China on Printing and Distributing the Code of Financial Institutions (Yinfa [2009] No.363) Shanghai Headquarters, branches, business management departments, provincial capital city center branches, policy banks, state-owned commercial banks, joint-stock commercial banks, China Postal Savings Bank and financial asset management companies of the People's Bank of China: In order to unify the coding methods of financial institutions, strengthen the interconnection between information systems and improve the efficiency of information sharing, Standardize the codes of financial institutions used by the People's Bank of China and financial institutions in the construction, development, upgrading and transformation of information systems and data warehouses, and ensure the truthfulness, accuracy and completeness of the code information of financial institutions. The People's Bank of China has compiled the code of financial institutions, which are hereby printed and distributed to you. China People's Bank Shanghai Headquarters, branches, business management departments and provincial capital city central sub-branches are requested to forward this notice to relevant financial institutions within their respective jurisdictions. Appendix: Code Specification of Financial Institutions China People's Bank 2009 1 1 30th Appendix Code Specification of Financial Institutions (omitted) Related Q&A: How to identify fraudulent companies in the financial industry? At present, all financial institutions in China are licensed to operate, which means that all formal financial institutions have financial business licenses. This appraisal is very simple to see whether it belongs to the regulatory body under the two sessions. At present, the regulatory agencies are divided into two parts, one of which is subordinate to the China Banking Regulatory Commission, such as banks, insurance companies and trust companies. Some are under the CSRC, such as securities companies, futures companies and fund companies.

Some are filing systems, such as private equity fund companies.

These companies have channels to inquire. China Banking Regulatory Commission and China Securities Regulatory Commission both have lists of institutions to inquire about, and private equity companies can inquire about in official website, and fund industry associations.

In 20 10, the People's Bank of China issued the Code of Financial Institutions (hereinafter referred to as the Code), which unified the classification standards of financial institutions in China from the macro level, defined the scope of financial institutions in China for the first time, defined the specific composition of various financial institutions, and standardized the statistical coding methods and methods of financial institutions.

Classification of financial institutions in code:

Monetary authorities

1, People's Bank of China;

2. State Administration of Foreign Exchange.

Supervisory organization

1, China Banking Regulatory Commission;

2. China Securities Regulatory Commission;

Bank deposit financial institution

1, bank;

2. Urban credit cooperatives (including cooperatives);

3. Rural credit cooperatives (including cooperatives);

4. Rural mutual funds cooperatives;