Recently, Beijing King&Capital law firm ZhangQiMing, XuMing, WangQi and other lawyers composed of lawyers team accept the commission, as a company suspected of fraudulent loan cases of defense, the amount of more than 40 million yuan, the whole company twelve people were criminal detention. After the intervention of the lawyer team immediately went to the detention center to understand the case, for the crime to carry out research and analysis, and actively communicate with the authorities, King&Capital Law Firm put forward the not guilty defense was adopted, the twelve people were not approved arrest.
Qin mou (a pseudonym) for a transportation company legal representative, chairman. The transportation company in order to obtain loans, to unit employees registered shell company as the main body of the application, for the application of the purchase and sales contracts, financial statements are flawed, to obtain a loan of more than 400 million yuan, has more than 40 million yuan overdue. ZhangQiMing, XuMing, wang qi and other lawyers accept the commission, quickly set up a team of lawyers and division of labor, from the access to the loan information, the depth of analysis of financial information, clarify the facts of the case, many times to carry out the analysis and discussion of the case.
The defense lawyer team that:
Although the loan materials are flawed, the company provided a real and even excessive guarantee, to the unit name of the value of nearly one billion yuan of real estate as collateral, Qin also provided personal unlimited joint and several liability guarantee. In addition, despite the loan is overdue, but the bank has not taken any litigation means to realize the collateral or require the guarantor to assume the guarantee responsibility. Based on this, the legal team wrote more than thirty pages of defense opinions to argue for the defense of innocence, and provided detailed data support.
In the era of Criminal Law Amendment (VI), the crime of obtaining loans by deception is “actual crime + circumstance crime”, as long as the perpetrator “causes significant losses or other serious circumstances” that constitutes a crime, and the matching filing and prosecution standards also allow for the “obtaining loans by deception, the amount of one million dollars or more” to be prosecuted. This means that as long as the material is flawed, the bank lending more than one million yuan can enter the criminal combat range, which led to fraudulent loan crime in practice was abused.
In order to curb the problem of pocketization of the crime of obtaining loans by deception, the Amendment (XI) to the Criminal Law deleted the expression “or other serious circumstances” in the crime, and made it clear that the crime of obtaining loans by deception is a crime of actual harm and a crime of result, which can be committed only if it “causes major losses to the bank or other financial institutions”. Only in the case of “causing significant losses to the bank or other financial institutions” can the crime be constituted. Correspondingly, the 2022 prosecution standard also adjusted the prosecution standard of this case to “causing direct economic loss to banks or other financial institutions in the amount of more than 500,000 yuan”, which strengthened the positioning of the crime as an actual offender.
From the legislative changes can be seen, the crime of fraudulent loans to punish not all irregular loan behavior, and not require the loan material “holy”, but those who lead to the bank credit funds into the risk of behavior to regulate.
Defense lawyers from this perspective, one from the facts, a detailed combing of the property value of the collateral, that in the case of providing full collateral, guarantee, Qin and a transportation company did not cause significant losses to the bank. Moreover, the bank has not filed a civil lawsuit, in fact, a transportation company has the ability to return the loan, the bank's loss is unlikely to occur, the security of credit funds have not been violated. Second, from the evidence, pointed out that in the absence of civil litigation and enforcement means, no evidence to prove that the bank has suffered losses. Thirdly, from the perspective of cases, it has submitted fifteen search reports of similar cases, and strengthened the argumentation through authoritative cases such as typical cases, guiding cases and People's Court case bank cases, emphasizing that no loss means no crime.
Difficulty in lending to private enterprises is a chronic problem, a requirement for the sanctification of loan materials is not only contrary to the economic reality, but also not conducive to the development of the private economy. In reality, banks and lenders often know the moisture of the material, but as long as it does not cause the loss of bank credit funds, legal infringement did not arise. King&Capital team of lawyers successfully defended, involved in the case of twelve people all rescue success, for the enterprise to solve the loan dispute provides an opportunity.
