Viewpoint... The discussion of preventing malicious evasion of financial debt through criminal relief.

Published:

2021-11-19

Introduction Malicious evasion of financial debts, disrupting the normal financial order, destroying the social credit system, aggravating the operational risk of financial assets and directly threatening the healthy operation of the financial industry is a malignant tumor in the construction of China's financial ecological environment and has great social harm. In recent years, affected by the complex economic situation at home and abroad, the liquidity risk of some enterprises has been exposed and spread along the guarantee circle, and the trend of evading financial debts has risen, which has become one of the prominent problems affecting economic development and social stability. According to data disclosed by the CBI, the non-performing rate of credit funds has remained high for years, and the non-performing situation of national banks in 2019: the non-performing balance of the six major banks was 895.9 billion yuan, of which: 40.75 percent in the secondary category, 42.49 percent in the suspicious category and 16.76 percent in the loss category. The non-performing balance of 12 joint-stock banks was 480.5 billion yuan, of which: 43.64 per cent in the sub-category, 34.47 per cent in the doubtful category and 21.89 per cent in the loss category. Large banks have a non-performing loan ratio of 1.38 per cent and shares of 1.64 per cent. There is no lack of malicious evasion of financial debt. In view of the situation of malicious evasion of financial debts (bank credit) by borrowers, this paper discusses how to realize credit claims and recover credit debts for banks and other financial institutions through criminal means. Text Evasion of financial debts refers to the deliberate evasion, suspension and destruction of banking claims by enterprises, institutions, other organizations and individuals that lend to banking institutions. Malice means that these units and individuals subjectively know that they cannot repay the loan on time, still take false means to obtain the loan, or have the ability to repay the loan, but deliberately do not repay the loan for some motive. Malicious evasion of financial debt undermines the overall efficiency of loan use, and the ownership of credit assets and the safety of credit assets of financial institutions are threatened, which has serious social harm. Non-repayment of loans to financial institutions is not just a civil matter; in many cases, criminal offences are involved. Common charges First of all, let's take a look at the common crimes of malicious evasion of financial debt in the financial sector, especially in the bank credit business: Article 193 of the Criminal Law on the crime of loan fraud, in one of the following circumstances, for the purpose of illegal possession, defrauding loans from banks or other financial institutions, the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and a fine of 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 less than 10 years and a fine of 50,000 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 a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property: (I) fabricating false reasons for introducing funds or projects; (II) use of false economic contracts; (III) use of false supporting documents; The (IV) uses a false title certificate as a guarantee or repeatedly guarantees the value of the collateral; (V) defrauding loans by other means. The crime of obtaining loans by fraud is a new crime in the (VI) to the Amendment to the Criminal Law, and it is also a common crime in handling cases of malicious evasion of financial debts. One of the multiple crimes stipulated in Article 175 of the Criminal Law, "Whoever obtains loans, bill acceptances, letters of credit, guarantees, etc. from banks or other financial institutions by deception, causing heavy losses to banks or other financial institutions or other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or separately be fined; causing particularly heavy losses to banks or other financial institutions or having other particularly serious circumstances, shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be sentenced to a fine." Article 27 of the (II) on the Standards for Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (hereinafter referred to as the "Regulations") issued by the Ministry of Public Security in May 2010 stipulates that where the amount of loans obtained by deception is more than 1 million yuan, or the amount of direct economic losses caused to banks or other financial institutions by deception is more than 200,000 yuan, or although it does not meet the above-mentioned amount standard, however, if a loan is obtained by deception for many times, and other circumstances that cause heavy losses to financial institutions or have other serious circumstances, a case shall be filed for prosecution. The above can be seen, the crime of loan fraud than the crime of loan fraud punishment to be greater, but in judicial practice, the suspected crime of loan fraud case investigation than the suspected crime of loan fraud cases to be more, the reason is that the crime of loan fraud "illegal possession of the purpose" in judicial practice to identify more difficult. The investigative capacity of lawyers and banks makes it difficult to directly prove that the debtor has the purpose of illegal possession, and lawyers or bank staff can find the lender to understand the situation, but do not have the right to interrogate. For example, the purpose of the lender's loan is to purchase equipment, and as a result, after the money is put down, it uses most of the money to build the plant, and part of the money is returned to the previous credit funds, such as this kind of situation is difficult to identify as illegal possession. Because credit payments are still used in actual business, it is a commercial act. Then the debtor's use of fraudulent credit funds to purchase luxury cars and houses can be identified as illegal possession, but it is difficult for us to fix the evidence and can only provide clues to the public security department. The objective elements of the crime of obtaining loans by fraud. Next, according to judicial practice, the objective elements of the crime of obtaining loans are detailed: Direct economic loss caused by 1. Deceptive means to obtain loans of more than 1 million yuan or direct economic losses of more than 200,000 yuan. Whether it is illegally obtaining a loan of more than one million yuan or causing direct economic losses of more than 200,000 yuan to financial institutions, in judicial practice, the three departments of the public security organs and the law only determine that the principal, interest or other liquidated damages cannot be counted. In judicial practice, it is rare to be prosecuted for obtaining more than one million loans by deception or so-called multiple fraudulent loans without causing losses to the bank, and there is no corresponding judicial interpretation. 2. obtain loans by deception This crime is different from the crime of loan fraud and is not specifically listed. Therefore, in judicial practice, the identification of criminal fraud and civil fraud is controversial. Except for the determination of the prosecution standard of the amount of crime, the understanding of each city is not uniform when handling cases. The same case may be identified as obtaining loans by deception in a certain place, but it is identified as ordinary civil fraud by a local case handling agency, disputes can be resolved through civil means. Situations like this where the identification standards are not uniform are often encountered when handling financial cases. The following summarizes the basic objective requirements for filing a case based on multiple cases of fraudulent loan crimes. 1. False financial statements, audit reports. Annual and quarterly written reports on the company's financial position and operations issued by an accounting firm or other financial audit firm. Whether the statements and reports submitted to the bank as the basis for the loan are consistent with the documents submitted to the tax department or retained in the accounting firm or audit company is a key part of the lawyer's review. The financial statements submitted by a company to the tax department are losses for the current year, and the financial statements submitted to the bank for the same period are a profit of more than 2000 million yuan, such statements are sufficient to identify as loan information fraud. Compared with the financial data, the difference is about 30%, which is not considered as false material. For example, the financial data submitted to the tax department made a profit of 1 million yuan in the current year and the bank data submitted was 1.3 million yuan. Such statements are not considered false and belong to reasonable financial data fluctuation. There are two common ways to issue false reports, one is to directly falsify, falsify the seal of a finance company or accounting firm, and directly produce false audit reports and other credit data. In addition, the lender conspires with the financial company. The financial company issues different reports. The one that is kept on file or submitted to the tax department is true, and the one that is provided to the bank is false. The financial company keeps a true report to avoid its own legal risks. When the relevant department checks, it will shirk the false report without knowing that it was forged by the lender itself, thus exempting it from liability. However, in judicial practice, most financial companies were held accountable for issuing false financial reports and were not spared. 2. The collateral and guarantee provided by the loan subject are falsified. (1) Fictitious collateral, material of the value of the pledge. The real market evaluation value of a shop along the street is more than 1200 million yuan, and the evaluation report submitted to the bank is more than 3000 million yuan. This assessment report is beyond the scope of market fluctuations and is fraudulent. (2) Concealing the fact that the collateral is mortgaged multiple times. (3) Fictitious guarantor, the guarantor uses false identity information and business information. The guarantor uses false identity information, which is easy to identify during the second verification, such as name, age, real occupation, etc. In the specific case practice, the main focus is on the real degree of information of the guarantee enterprise, the starting point is in the bank flow, registered capital, the actual business situation. In the process of small and medium-sized enterprise loans, a large part of the guarantee enterprises are shell companies, there is no actual operation, for such a situation must be verified and formed written evidence. 3. The fictitious use of the loan or the inconsistency of the credit funds with the actual use. (1) Fictitious sales contracts, supply and marketing contracts. Through investigation and evidence collection, it is initially understood that the loan subject has no real trading behavior. For example, a company's loan is used to purchase a large program-controlled exchange, through the investigation of the supply enterprise, it is found that the supply enterprise and the loan company are affiliated enterprises of the same actual controller, and the sales contract signed is a false contract, and there is no real transaction behavior. (2) The credit funds do not match their actual use. Transfer bank flow, pay attention to the direction of funds after the funds are decentralized, and focus on the flow from company accounts to individual accounts. For example, after a bank loan is made, the debtor will transfer the funds to several different corporate accounts, and then through the corporate account to the individual account, such a flow of funds is more likely to form direct evidence that the credit funds do not match the actual use. As to whether it is ultimately the job of the public security organs to find out where the money goes, lawyers can only provide clues, and the flow of credit funds is also one of the objective elements to distinguish between loan fraud and loan fraud. It should be noted that the above elements need to be available at the same time. For example, collateral and guarantees must reach an objective level of falsehood and forgery, and if the collateral is sufficient or the guarantee is true, even if the financial statements provided are falsified, in judicial practice the procuratorate will require financial institutions to exhaust civil means to realize their claims and will not initiate public prosecution. The public security organs find that there is a real mortgage guarantee and usually will not be investigated as a criminal case. Evidence clues to be collected for criminal charges From 2017 to 2019, Shandong Province carried out the "Special Governance to Combat Malicious Evasion of Financial Debt", which loosened the objective elements of the above fraudulent loan acquisition. There are cases that show that a lender who has a full mortgage guarantee and uses false loan information to defraud a loan, causing heavy losses to the bank, is criminally punished for the crime of defrauding a loan. However, after 2020, it is difficult to unify the understanding of various places, and the lack of unity of understanding of the elements of crime is one of the sticking points that commercial crime is usually difficult to file. This requires lawyers to make great efforts in preparing evidence materials, turn clues into professional evidence, and help public security organs to collect criminal evidence. The reported materials should be detailed and complete to form an evidence chain. When the public security organs file a case for review, the evidence materials are clear and clear, which is easy to file a case for investigation. In judicial practice, in order to severely punish malicious evasion of financial debts, it is necessary to assist the public security organs in actively carrying out evidence collection and fixation work, and the following clues of evidence need to be collected: First, the details of the loan subject. Company registration information, legal person identity certificate, husband and wife identity information, important is the actual controller information. This kind of information is kept in detailed files when handling bank loans and needs to be copied into a book. Among them, the information of the actual controller is the most important, and many company legal representatives are not the same person as the actual controller. The real lender and administrator are not natural persons reflected in the business registration certificate. The handling of criminal cases is different from civil cases. The loan contract in civil cases pays attention to relativity. Whoever signs the contract will be responsible. If additional contract parties need to submit corresponding evidence. In criminal cases, the information of the actual controller provided by the lawyer as a clue to the case needs to be identified in detail by the judicial department according to its functions and powers, so the actual controller's retreat behind the scenes may avoid civil legal risks, but it is not feasible on the road of criminal investigation. The public security organ will investigate the relationship between the industrial and commercial registration legal person and the actual controller, and take the actual controller as the object of investigation. Therefore, lawyers should fully communicate with bank credit managers in the process of handling cases. In general, credit managers have a better understanding of real lenders. The second is the basic information of the loan. Loan contracts, sales contracts, guarantee contracts, bank flow, financial statements, mortgage warrants, various appraisal reports, bank due diligence information, etc. Financial Statements. In the event of a bad bank credit, the lawyer should first remind the bank to check whether the tax department is consistent with the financial statements provided to the bank credit information, even if the discrepancy is within a reasonable range. This is the most critical link. Sales or supply and marketing contracts. The key to the verification of these two materials is the visit and investigation of lawyers or bank staff. The clearer the investigation of the details of the false contract, the more detailed the evidence clues provided to the public security department, and the smoother the case. One is whether there is a real supply company, the other is whether there is a real goods transaction, and the third is who is the actual controller. The most critical breakthrough point is the bank flow of the supply company. The real company's operating capital flow is very complicated, while the false company's operating capital flow is very simple. Only the capital flow information for loans is easy to identify. Assessment report. The verification of the appraisal report needs to be combined with collateral (in the case of collateral), such as real estate, which requires information on the property, market prices, and field visits to surrounding properties to clarify the actual price. Compare the assessment report to assess its true extent. In a large number of loan materials to focus on the investigation of the above three, the lawyer to prepare all the evidence materials, write a catalogue of evidence, collated into a systematic case file. The next job is to draft the report materials in the name of the bank. The first is the reporting material, and the second is the analysis report or legal opinion. Reporting materials. The reporting materials do not have to be cumbersome and complicated, with the actual loss of the bank as the result, the lender will use what false means to defraud the bank loan process to the time axis written statement. Strive for clarity and clarity so that the handling department at a glance, understand the full picture of the case. Case analysis report, legal opinion. The objective facts of the case investigated will be combined with the constituent elements of the specific charges in the criminal law to analyze the legal relationship and form a systematic written opinion. From the perspective of judicial practice, the lawyer's report is a legal idea provided to the case handling department. Through the written report, the public security organ can understand the legal picture of the case. Concluding remarks In the end, the lawyer with professional criminal legal literacy is good at in the general civil loan contract dispute case, to help banks and other financial institutions to identify the malicious evasion of financial debt lenders, through the public security organs to severely fight.

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