<b>[Dahe Bao, Dahe Caifang] (reporter Pei Rongrong, Tao Jiyan)</b> "In recent years, due to the economic environment at home and abroad, cases of enterprises fraudulently obtaining loans have occurred from time to time, and the incidence of illegal loan issuance has shown a significantly high incidence. It is necessary to improve the relevant provisions on the crime of illegally granting loans, so as to clarify the controversial issues in judicial practice and create a benign development environment for the financial ecology. During the two sessions of the National People's Congress in 2021, Wang Tianyu, a deputy to the National People's Congress, secretary of the party committee and chairman of the Board of Directors of the Bank of Zhengzhou, brought this proposal to the scene.
The so-called crime of illegally granting loans refers to a staff member of a bank or other financial institution who grants a loan in violation of State regulations, and the amount is huge or causes major losses, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 10,000 yuan but not more than 100,000 yuan; if the amount is particularly huge or causes particularly heavy losses, he shall be sentenced to fixed-term imprisonment of not less than five years, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan. The crime of illegally granting loans came into being to combat loan violations and played an important role in the financial industry in controlling financial chaos.
However, due to various reasons, cases of enterprises defrauding loans still occur from time to time.
"The reason for the high incidence is that the criteria for determining the crime of illegally granting loans are not clear, which has led to an expansion of the scope of application of this crime in practice, and it has been used more and more and more generally, which has affected the normal development of the financial industry; there are also cases where lawbreakers maliciously report the crime under the guise of this crime, in a vain attempt to evade debts or embezzle state-owned assets, resulting in the abuse of this crime." In view of the above situation, Wang Tianyu put forward three suggestions.
The first is to optimize and improve the criteria for determining the crime of illegally granting loans. On the one hand, it is strictly applicable to the scope of "violation of state regulations" in the "crime of illegally granting loans", and the Supreme People's Court should supervise and avoid expanding the scope of the use of "state regulations". On the other hand, the boundaries between violations and violations by the staff of financial institutions are carefully defined. If the staff of a financial institution does not conduct on-site investigations and does not follow the rules of mutual confirmation to comprehensively review and evaluate credit information, resulting in an inaccurate assessment of the borrower's ability to repay, it may be determined that his conduct is "in violation of national regulations". However, if the above information is individually false, but it does not affect the results of the assessment of the borrower's ability to repay, the staff failed to identify the false information and it is not appropriate to identify it as a crime. For violations, it is suggested that the regulatory authorities can instruct financial institutions to internal accountability, implement rectification, and carry out corresponding administrative penalties in more serious cases. In addition, it was suggested that a distinction be made between whether the subjective constituent elements of the offence of illegally granting loans were intentional or negligent. In practice, the form of guilt of illegally granting loans is too strict, and the negligent act is elevated to a crime in the crime of illegally granting loans, which is also inconsistent with the principle of proportionality of criminal responsibility and punishment. It is suggested that it is not appropriate to identify a crime whether the subjective constituent elements of the crime of illegally granting loans are intentional or negligent, non-subjective malice, and low social harm.
The second is to raise the standard of the amount of guilty for the crime of illegally granting loans. As one of the criteria for measuring crimes, the reasonable setting of the standard of the amount of guilt will not only help determine the seriousness of the nature of the crime, but also help to impose a reasonable punishment on it, so that the crime and punishment are compatible, and at the same time, it will also better play the role of warning and education, otherwise it may limit social and economic development due to excessive punishment. It is recommended that the judicial department promote the resolution of some cases with low social harm, low amount and small impact through civil channels.
The third is to give the legitimate civil effect of the loan contract and its guarantee contract involved in the case. According to the theory of contract law, if the illegal granting of loans constitutes a crime, it will not affect the legal civil validity of the loan contract and the guarantee contract. It is suggested that, where the illegal granting of loans constitutes a crime, the legitimate civil validity of the loan contract and its guarantee contract should be given, and the acts of enterprises passing on business risks to financial institutions through criminal means and local protection, maliciously evading the debts of financial institutions, protecting the rights and interests of the staff of financial institutions in accordance with the law, and maintaining financial order and financial ecological environment.
Editor-in-charge: Liu Yun | Review: Li Zhen | Director: Wan Junwei
