According to article 175-1 of the Criminal Law, the crime of fraudulently obtaining loans refers to the act of obtaining loans from banks or other financial institutions by deception and causing major losses to banks or other financial institutions. It can be seen that the criminal object of the crime of fraudulently obtaining loans is a bank or other financial institution. To solve the problem of whether a microfinance company is the target of the crime of defrauding a loan, it is necessary to solve the problem of whether the microfinance company belongs to "other financial institutions", which directly determines the determination of crime and non-crime.
In practice, there are two tit-for-tat views. The negatives mainly believe that the current law does not clearly stipulate that microfinance companies are financial institutions; judicial practice has not unanimously determined that microfinance companies are financial institutions; and that treating microfinance companies as financial institutions does not conform to the principles of criminal law and the principle of modesty in criminal law. For example, the Criminal Trial Reference No. 962 [Jiang Shuchang Loan Fraud Case - Whether the Act of Defrauding a Microfinance Company Constitutes the Crime of Defrauding a Loan] Analyzes the nature of the microfinance company from the perspective of substantive determination, and believes that the microfinance company is another non-bank financial institution established according to law that operates microfinance financial business, thus conforming to the characteristics of the object of the crime of defrauding loans.
By reviewing a large number of relevant cases, the author found that courts across the country have almost formed a phenomenon of "each judgment is made", and the "unified standards for the application of law" cannot be truly realized on this issue. In addition to the inconsistencies in the adjudication of different courts, the understanding between procuratorates in different localities and between local procuratorates and courts is also inconsistent, and there are many cases in which procuratorates raise protests on this issue. Even the same court has "different judgments in the same case", for example, a court in Zhejiang recognized the microfinance company as a financial institution in the (2018) Zhejiang 10 Xing Zhong No. 605 ruling, but in the (2020) Zhejiang 10 Xing Zhong No. 247 ruling, it held that "it is not appropriate to treat the microfinance company as a financial institution".
The author summarizes and expounds the determination of the nature of the microfinance company in combination with the reasoning of the judgment, and puts forward the search ideas for you to discuss and correct together.
I. Determination of the nature of the microfinance company
According to the Guiding Opinions of the China Banking Regulatory Commission Chinese Minmin Bank on the Pilot Project of Microfinance Companies (hereinafter referred to as the Guiding Opinions), microfinance companies are established after approval by provincial governments, and are established by natural persons, enterprise legal persons and other social organizations, do not absorb deposits from the public, and operate small loan business of limited liability companies or joint-stock limited companies.
Regarding whether a microfinance company is a financial institution:
(1) Clear provisions
1. Affirm your views
In 2009 Chinese the "Code of Coding for Financial Institutions" compiled by the Minmin Bank stipulates: "This specification stipulates the coding objects, coding structure and representation of financial institutions, so that each coding object obtains a unique code...", and the code "Z-Other 1 - Microfinance Company" is formulated for microfinance companies.
The Notice on Relevant Matters Concerning the Financial Statistics System of Chinese-Funded Financial Institutions in 2010 issued by the Chinese Min min bank clearly stipulates: "Other financial institutions in China: other financial institutions other than the above institutions. Including financial institutions such as microfinance companies". At the same time, the Notice on Matters Related to the Financial Statistics System of Chinese-funded Financial Institutions in 2010 also explicitly requires microfinance companies to apply the financial statistics system of financial institutions.
In the relevant documents and notices of the Chinese Min min bank on financial statistics, it was once clear that microfinance companies were included in financial statistics as other financial institutions.
2. Negative opinions
The Banking Supervision and Administration Law of the People's Republic of China and the Measures for the Implementation of Administrative Licensing Matters for Non-bank Financial Institutions of the China Banking and Insurance Regulatory Commission and other documents do not list microfinance companies as financial institutions.
In the Regulations on Non-depository Lending Organizations (Draft for Solicitation of Comments), microfinance companies are distinguished from other non-depository financial institutions, and the status of financial institutions of microfinance companies has not yet been granted.
(2) Substantive interpretation
Microfinance companies have the characteristics of financial institutions, as follows:
(1) Microfinance companies are mainly engaged in financial business
For example, commercial banks are typical banking financial institutions, and Article 3 of the Law of the People's Republic of China on Commercial Banks stipulates the businesses that commercial banks can operate, including "issuing short-term, medium-term and long-term loans", which shows that the issuance of loans is financial business. The main business of microfinance companies is to issue loans, that is, microfinance companies are mainly engaged in financial business.
(2) A microfinance company shall be established with the approval of the competent department of the provincial government authorized by the banking regulatory authority
The Guiding Opinions, jointly formulated by the China Banking Regulatory Commission (CBA) and the Chinese Bank, stipulate: "To apply for the establishment of a microfinance company, a formal application shall be submitted to the competent department of the provincial government, and after approval, it shall apply to the local administrative department for industry and commerce for registration procedures and obtain a business license." In addition, relevant materials should be submitted to the local public security organs, the agencies dispatched by the China Banking Regulatory Commission and the branches of Chinese Min Bank within five working days. "It can be seen that the establishment of microfinance companies must be approved by the competent departments of provincial governments.
According to the third paragraph of Article 2 of the Banking Supervision and Administration Law of the People's Republic of China, "the provisions of this Law on the supervision and administration of financial assets management companies, trust and investment companies, financial companies, financial leasing companies and other financial institutions established with the approval of the Banking Regulatory Authority under the State Council shall apply to the supervision and management of banking financial institutions established within the territory of the People's Republic of China" and Article 16 "The conditions and procedures prescribed by the Banking Regulatory Authority under the State Council shall be in accordance with laws and administrative regulations." Review and approve the establishment, modification, termination and business scope of banking financial institutions" provisions, and the Banking Regulatory Commission may be responsible for the approval of the establishment of non-bank financial institutions.
Based on the above, it can be considered that a microfinance company is another financial institution established with the approval of the competent department of the provincial government authorized by the banking regulatory authority.
(3) The microfinance company is in charge of a provincial-level government department authorized by the banking regulatory authority
The Guiding Opinions stipulate: "Where the provincial government can specify that a competent department (financial office or relevant institution) is responsible for the supervision and management of the microfinance company, and is willing to assume the responsibility for the risk disposal of the microfinance company, it can carry out the pilot establishment of a microfinance company within the county scope of the province (autonomous region, city). "It can be argued that the China Banking Regulatory Commission (CBIRC) and Chinese Bank, as the competent departments of financial institutions, authorize the competent departments of provincial governments to supervise and manage the business activities of microfinance companies.
(1) There are disputes in judicial practice, and the criminal law should not have a clear conflict with other departmental laws
For example, in civil trial practice, the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases are applicable to loan disputes involving microfinance companies, and Article 2 of the Provisions clearly states that "financial institutions and their branches engaged in loan business established with the approval of the financial regulatory department shall not apply to disputes arising from the granting of loans and other related financial business". In civil trial practice, microfinance companies are not uncontroversially regarded as financial institutions. In the absence of clear legal provisions, the criminal law should not have a clear conflict with the civil law, etc., and the microfinance company should not be recognized as a financial institution.
(2) The inclusion of a microfinance company as a financial institution does not conform to the principles of criminal law and the modesty of the criminal law
According to the principle of systematic interpretation of the Criminal Law, the provisions of the Criminal Law should follow logical harmony, and if it is determined that the microfinance company is a financial institution, it will inevitably lead to the microfinance company meeting the requirements of other financial institutions as criminal subjects. For example, if a microfinance company can become a defrauded entity for the crime of defrauding loans, it will also meet the requirements of the criminal subject for crimes such as the crime of illegally granting loans. According to the principle of clarity in the principle of criminal law, "whether a microfinance company is a financial institution" is an issue that must be clarified as constitutive elements of the relevant crime, combined with the modesty of the criminal law, under the premise that the current law does not specify that the microfinance company is a financial institution, at least at this stage, the microfinance company should not be regarded as a financial institution in criminal trials.
Second, search ideas
(1) Exhaust authoritative content
As a lawyer, you should exhaust existing provisions dealing with the nature of microfinance companies (rules of general applicability, non-local rules) and cases (cases of authority).
We will find that even without the support of Guiding Cases, there are still some valuable cases.
For example, in the classic case [Xu Fusheng et al. Case of Loan Fraud (2018) Jing 01 Xing Zhong No. 14] held that the microfinance company was not a financial institution; in the case [Jiang Xingbo's refusal to execute the judgment and ruling the crime (2020) Zhejiang 10 Xing Zhong No. 247], the court held that the microfinance company was not a financial institution. The procuratorate mentioned in the reasons for the protest: "In judicial practice, microfinance companies have been recognized by the adjudication organs as financial institutions. For example, the Supreme People's Court's "Criminal Trial Reference" Guiding Case Jiang Shuchang Fraudulent Loan Case, the Supreme People's Procuratorate's "Financial Crimes Guiding Case Practice Guide" Typical Case Wan Xu Illegal Loan Case, and so on. The court of second instance did not agree: "Although the protest organ listed some of the resolved cases, it proved that in judicial practice, microfinance companies were identified as financial institutions." However, these cases are not Guiding Cases, and the reasons on which they are based are basically Chinese Min min bank's Code for the Coding of Financial Institutions. In addition, in judicial practice, there are a large number of cases in which microfinance companies are not recognized as financial institutions..."
(2) Focus on the case itself
At this time, continue to look for local regulations and cases, such as the case is under the jurisdiction of the Chaoyang District People's Court of Beijing Municipality, find the relevant provisions of the Beijing Area and the precedents of the Chaoyang District People's Court of Beijing Municipality, the Third Intermediate People's Court of Beijing Municipality, the Beijing Municipal High People's Court, and the Supreme People's Court, if there is no harvest, the scope of search can be further expanded.
In addition, you can search for articles written by local court judges and procurators through CNKI, public accounts, Baidu and other platforms, keep abreast of the judicial personnel's case-handling ideas and styles, ensure that no case-related information is omitted, and strive to achieve the ultimate search work.
3. Summary
As far as the fraudulent loan is concerned, the determination of "whether the microfinance company is a financial institution" directly determines whether the perpetrator constitutes the crime of fraudulent loan. By extension, if the perpetrator not only fraudulently obtains the loan, but also subjectively has the purpose of illegal possession, then it also involves the choice and application of the crime of loan fraud and the crime of contract fraud.
In September 2020, the Supreme People's Court issued the Opinions on Improving the Working Mechanism for Unified Standards for the Application of Law, which proposed: "People's courts at all levels should regard the unified standards for the application of law as an important part of comprehensively implementing the judicial responsibility system, deepening the comprehensive reform of the judicial system, and accelerating the reform and construction of the judicial restraint and supervision system for law enforcement, and standardize judicial behavior, unify adjudication standards, and ensure judicial fairness, efficiency, and authority by improving the trial work system, management system, and power operation mechanism." Strive to let the people feel fairness and justice in every judicial case. At present, with the rapid development of economy and society, the law is inherently lagging behind, coupled with the inherent requirements such as considering the stability of legislation, "unified application of law" is the goal that requires continuous efforts. At this time, the role of professional lawyers is more prominent, and through comprehensive and meticulous search work, full communication with the court and procuratorate, and smooth defense analysis, they can protect the legitimate rights and interests of the parties to the greatest extent and promote fairness and justice.
Tian Shuai: Senior partner of Beijing Yingke Law Firm, deputy director of the second criminal department, only does criminal cases. Handling criminal cases throughout the country has resulted in numerous cases in which courts have ruled innocence, second-instance judgments were changed and remanded for retrial, suspended sentences, procuratorates did not prosecute, arrests were not approved, and direct release on guarantee pending further investigation.
Ye Yun: Graduated from China University of Political Science and Law, he is a trainee lawyer at Beijing Yingke Law Firm.
Beijing Yingke Law Firm Address: 17-25th Floor, Chia Tai Center, Chaoyang District, Beijing.