Four Departments: Senior Citizens Should Be Punished Severely in Implementing Routine Loans

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 Four Departments: Senior Citizens Should Be Punished Severely in Implementing Routine Loans


There are 13 articles in the Opinions, which mainly clarify the boundaries between routine loan and non-governmental loan, severely punish routine loan crimes and determine the jurisdiction of criminal cases of routine loan according to law. In particular, the Opinion points out that unless the criminal law and judicial interpretations provide otherwise, heavy penalties shall be imposed as appropriate for the execution of routine loans for the elderly, minors, students at school and persons incapacitated to work, or for the execution of routine loans resulting in the suicide, death, mental disorder of the victim or his or her specific relatives, or for the purpose of repaying debts.

Common Techniques of Routine Loan

Routine lending is a criminal activity of illegal possession in the name of borrowing money from non-governmental organizations, which is essentially different from ordinary non-governmental lending, Jiang Wei, Vice President of the Supreme Peoples Court and Vice Director of the National Anti-Black Office, pointed out at a news conference.

According to the Opinion, Routine Loan is a general term for a certain kind of criminal acts, specifically for the purpose of illegal possession, to induce or force the victim to sign relevant agreements such as borrowing or disguised lending, mortgage and guaranty, to form false creditors rights and liabilities by means of false increase in the amount of borrowing, malicious breach of contract, arbitrary determination of breach of contract, and to take possession by illegal means. The general appellation of the criminal activities related to the victims property. The principal and legitimate interest of non-governmental lending are protected by law, while routine lending is essentially an illegal and criminal act and should be punished by law.

The Opinion lists common criminal techniques and steps of routine lending in practice (including but not limited to the following situations):

(1) Fabricating the illusion of private lending. Criminal suspects and defendants often publicize in the name of micro-loan company, investment company, consulting company, guarantee company and network lending platform. They use low interest rate, unsecured, fast lending as bait to attract victims to borrow money, and then use false reasons such as margin and rules to induce victims to sign false high amounts based on wrong perceptions. A loan agreement or related agreement. Some suspects and defendants will also force the other party to sign a loan agreement or related agreement with a high amount of money on the basis of the victims previous loan default and other reasons.

(2) False payment facts such as the flow of manufacturing funds through accounts. The criminal suspect and the defendant transfer the funds into the victims account according to the false high amount of the loan agreement, creating the traces of the bank flow in which all the loans have been delivered to the victim, and then take various means to recover all or part of the funds. In fact, the victim has not obtained or fully obtained the loan agreement or the money shown on the bank flow.

(3) deliberately creating a breach of contract or arbitrarily determining a breach of contract. Criminal suspects and defendants often set up default traps and create obstacles to repayment, deliberately causing the victim to default, or by arbitrarily determining the default, forcibly demanding the victim to repay false debts.

(4) maliciously raising the amount of borrowing. When the victim is unable to repay, some suspects and defendants will arrange their affiliated companies or designated affiliated companies and related personnel to repay the loan for the victim, and then sign a higher amount of false loan agreement or related agreements with the victim, through this transfer of bills to balance accounts and repay loans by loans way of increasing debt.

(5) To solicit debts both hard and soft. When the victim fails to repay the excessive loan, the criminal suspect and the defendant claim debt from the victim or the victims special relatives by means of litigation, arbitration, notarization or violence, threat or other means.

Three Points to Distinguish Routine Credit from Non-governmental Credit

In the case of routine lending, the actor borrows the name of private lending, which has strong concealment and confusion. Jiang Wei said that in practice, there are three main points to distinguish routine lending from folk lending:

Firstly, the essential difference between routine lending and private lending is to see whether there is the purpose of illegally possessing other peoples property.

The purpose of private lending is to obtain interest income. Subjectively, neither borrower nor lender wants to default. Lenders want borrowers to repay their loans on time, while routine lending is to design routines under the guise of borrowing to induce and force borrowers to build up high debts and ultimately achieve the purpose of illegally occupying borrowersproperty.

For example, in some cases, in order to occupy the property of the borrower, the defendant induces others to borrow 50,000 yuan first, and then agrees to repay the principal and interest of the loan within five years under various pretexts. Subsequently, the defendant used arbitrary determination of default and false transfer to settle debts, forced mortgage of the borrowers property, and eventually realized, and finally illegally occupied the borrowers property up to 1.02 million yuan. It can be seen that the purpose of routine loan is not to obtain agreed interest, but to illegally occupy the property of the victim.

Second, to see whether it has the nature of fraud.

Private lending is a kind of lending behavior under the real wishes of both sides, and routine lending has the nature of fraud. The perpetrator deliberately designs various routines, creates the false image of creditors rights and debts, and illegally occupies other peoples property.

For example, some criminals often use low interest rates and no mortgage as bait to attract victims to hook up, and use industry rules to induce victims to sign false high loan contracts, pretending that as long as repayments are made on time, the false high loan amount will not be repaid, and then create false payment traces, deliberately create defaults by refusing to accept repayments, and form a high through a series of routines. The amount of debt, to achieve the purpose of illegal possession of other peoples property.

Third, to see whether debt collection means are mandatory.

Routine lending creates a false high amount of borrowing, contrary to the will of the victim, the victim can not voluntarily repay the debt, so the perpetrators of Routine lending often resort to both hard and soft debt claims, usually by means of violence, soft violence, nuisance or litigation to force the victim to repay the debt.

A criminal organization consisting of more than three persons carrying out routine loans shall be recognized as a criminal group.

In determining the amount of routine loan crime, Opinion points out that it should be different from private lending, and negative evaluation should be given as a whole. Property illegally occupied by suspects and defendants under the names of interest, deposit, intermediary fee, service fee and liquidated damages should be included in the amount of crime. The amount of principal actually paid by the criminal suspect or defendant to the victim shall not be included in the amount of the crime.

In particular, the Opinion points out that unless the criminal law and judicial interpretations provide otherwise, heavy penalties shall be imposed as appropriate for the execution of routine loans for the elderly, minors, students at school and persons incapacitated to work, or for the execution of routine loans resulting in the suicide, death, mental disorder of the victim or his or her specific relatives, or for the purpose of repaying debts. At the same time, defendants who plead guilty, return stolen goods actively, sincerely repent or have other statutory and discretionary circumstances of lighter punishment may be given lenient punishment according to law.

The Opinion also points out that a relatively fixed criminal organization composed of more than three persons for the purpose of carrying out routine loans should be recognized as a criminal group. The ringleader shall be punished in accordance with all the crimes committed by the group. Those who conform to the criteria for identifying gangsters and evil forces shall be investigated, prosecuted and tried in accordance with the nature of gangsters, evil forces or criminal groups of evil forces.

Opinions on Several Questions Concerning Handling Criminal Cases of Routine Loan (Full Text)

In order to continue and deepen the special struggle against gangsters and evil spirits, accurately screen and severely punish the routine loan offenders according to law, we are now dealing with them in accordance with the provisions of the criminal law, the criminal procedure law, relevant judicial interpretations and the normative documents of the Supreme Peoples Court, the Supreme Peoples Procuratorate, the Ministry of Public Security and the Ministry of Justice, such as the Guiding Opinions on Several Questions Concerning the Handling of Crimes by Gangs The following opinions are put forward in dealing with some problems in criminal cases of routine loan:

1. Accurately grasp the difference between routine lending and non-governmental lending

1. Routine lending is to induce or force the victim to sign relevant agreements such as borrowing or disguised borrowing, mortgage and guaranteeing in the name of private lending for the purpose of illegal possession, and to form false creditors rights and debts by means of false increase in the amount of borrowing, malicious creation of breach of contract, arbitrary determination of breach of contract, destruction of evidence of repayment, and by means of litigation, arbitration, notarization or other means. The general appellation of criminal activities related to illegal possession of the victims property by violence, threat and other means.

In judicial practice, we should pay attention to the difference between cases caused by illegal debt collection and cases of routine loan. The suspects and defendants do not have the purpose of illegal possession, nor do they use routine to form false creditors rights and debts with borrowers. They should not be regarded as routine loan. If the use of violence, threats or other means of forcibly soliciting debts constitutes a crime, it shall be convicted and punished according to the facts of a specific case.

3. In practice, the common criminal methods and steps of routine loan include but are not limited to the following situations:

(1) Fabricating the illusion of private lending. Criminal suspects and defendants often publicize in the name of micro-loan company, investment company, consulting company, guarantee company and network lending platform. They use low interest rate, unsecured, fast lending as bait to attract victims to borrow money, and then use false reasons such as margin and rules to induce victims to sign false high amounts based on wrong perceptions. A loan agreement or related agreement. Some suspects and defendants will also force the other party to sign a loan agreement or related agreement with a high amount of money on the basis of the victims previous loan default and other reasons.

(2) False payment facts such as the flow of manufacturing funds through accounts. The criminal suspect and the defendant transfer the funds into the victims account according to the false high amount of the loan agreement, creating the traces of the bank flow in which all the loans have been delivered to the victim, and then take various means to recover all or part of the funds. In fact, the victim has not obtained or fully obtained the loan agreement or the money shown on the bank flow.

(3) deliberately creating a breach of contract or arbitrarily determining a breach of contract. Criminal suspects and defendants often set up default traps and create obstacles to repayment, deliberately causing the victim to default, or by arbitrarily determining the default, forcibly demanding the victim to repay false debts.

(4) maliciously raising the amount of borrowing. When the victim is unable to repay, some suspects and defendants will arrange their affiliated companies or designated affiliated companies and related personnel to repay the loan for the victim, and then sign a higher amount of false loan agreement or related agreements with the victim, through this transfer of bills to balance accounts and repay loans by loans way of increasing debt.

(5) To solicit debts both hard and soft. When the victim fails to repay the excessive loan, the criminal suspect and the defendant claim debt from the victim or the victims special relatives by means of litigation, arbitration, notarization or violence, threat or other means.

2. Punishing the Crime of Routine Loan Strictly according to Law

4. In the process of implementing routine lending, no obvious means of violence or threat have been used, and its behavioral characteristics as a whole are as follows: for the purpose of illegal possession, the victims property is defrauded by fabricating facts and concealing the truth, the crime of fraud is generally convicted and punished; for the implementation of routine lending, a combination of various means constitutes fraud, extortion, illegal detention and falsehood. In cases of litigation, provocation, forced transaction, robbery, kidnapping and other crimes, different situations shall be distinguished according to the facts of specific cases, and several crimes shall be punished or severely punished in accordance with the provisions of the Criminal Law and relevant judicial interpretations.

5. If more than one person jointly commits the crime of routine loan, the criminal suspect or defendant who plays a major role in the crime in which he participates shall be identified as the principal offender and bear criminal responsibility for all the crimes in which he participates or organizes or directs; if he plays a minor or auxiliary role, he shall be identified as an accessory offender.

If a person knows that another person commits a crime of routine loan, he shall be punished as an accomplice of the relevant crime in one of the following circumstances, except as otherwise provided in the criminal law and judicial interpretation:

(1) Organizing and sending loan information and advertisements to attract and introduce victimsloan;

(2) Providing funds, places, bank cards, accounts, transportation and other assistance;

(3) selling, providing or helping to obtain personal information of citizens;

(4) Assisting in the production of false payment facts such as account-taking records;

(5) assisting in notarization;

(6) assisting in bringing a lawsuit or arbitration with false facts;

(7) Assisting in cash-taking, cash-taking and transfer of movable or immovable property to transfer the proceeds of crime and the proceeds generated therefrom;

(8) Other circumstances that conform to the provisions of joint crime.

In the above-mentioned provisions, the subjective and objective factors such as cognitive ability, past experience, number of acts and means of the perpetrator, relationship with the case and the victim, profit situation, whether the perpetrator has ever been punished for the routine loan and whether he intentionally evades investigation and punishment should be comprehensively analyzed and identified.

6. When determining the amount of the crime of routine lending, it should be different from that of non-governmental lending. On the whole, it should be negatively evaluated. Property illegally occupied by suspects and defendants under the names of interest, deposit, intermediary fee, service fee and liquidated damages should be included in the amount of the crime.

The amount of principal actually paid by the criminal suspect or defendant to the victim shall not be included in the amount of the crime.

Routine lending has been implemented, but it has not been succeeded for reasons other than will. The attempted crime can be determined according to the amount of property illegally possessed according to the provisions of criminal law and judicial interpretation related to the relevant charges. If the accomplished part and the attempted part of a crime correspond to different statutory punishment ranges, it should first decide whether to mitigate the punishment for the attempted part, determine the statutory punishment ranges corresponding to the attempted part, and then compare them with the statutory punishment ranges corresponding to the accomplished part, select the statutory punishment ranges with heavier punishment and, as appropriate, impose heavier punishment at the same sentencing range. If the crime is accomplished, the punishment shall be heavier as appropriate.

7. All property illegally obtained by a criminal suspect or defendant from carrying out routine loans shall be recovered or ordered to be repaid; the legitimate property of the victim shall be returned in time. There is evidence that the principal paid to the victim by the suspect or the defendant for the purpose of routine loan should be confiscated according to law if there is any surplus after compensation for the victims loss.

If a criminal suspect or defendant has used the property illegally obtained to pay off debts, transfer or set up other rights and burdens, he or she shall recover it according to law in any of the following circumstances:

(1) The third party knows that it is illegally acquired property and accepts it;

(2) The third party obtains illegally obtained property free of charge or at a price significantly lower than the market price;

(3) The third party obtains illegal gains and property through illegal debt repayment or criminal activities;

(4) Other cases that should be recovered according to law.

8. If the old people, minors, students at school or persons who are incapacitated to work are taken as the objects to carry out routine loans, or if the victim or his specific relatives commit suicide, death, mental disorder or commit criminal activities in order to pay off debts as a result of the implementation of routine loans, heavy penalties shall be imposed as appropriate, except as otherwise provided for in the criminal law and judicial interpretation.

While adhering to strict punishment according to law, defendants who confess guilt, return stolen goods actively, sincerely repent or have other statutory and discretionary circumstances of lighter punishment may be given lenient punishment according to law.

9. For the routine loan criminals, the application of property punishment should be strengthened according to the specific charges they have committed. Those who conform to one of the provisions of Article 37 of the Criminal Law may be prohibited from engaging in related professions according to law.

10. A relatively fixed criminal organization composed of more than three persons for the purpose of carrying out routine loans shall be recognized as a criminal group. The ringleader shall be punished in accordance with all the crimes committed by the group.

Those who conform to the criteria for identifying gangsters and evil forces shall be investigated, prosecuted and tried in accordance with the nature of gangsters, evil forces or criminal groups of evil forces.

3. Determining Jurisdiction of Criminal Cases of Routine Loans in accordance with the Law

11. Criminal cases of routine loan are generally investigated by the public security organs in the place where the criminal suspect lives. If it is more appropriate for the public security organs in the place where the criminal suspect resides to file a case for investigation, the public security organs in the place where the criminal suspect resides may file a case for investigation. The place of crime includes the place where the crime happened and the place where the result of the crime happened.

The place where the crime occurs includes the place where the company is located, where the loan agreement or related agreement is signed, where the illegal debt collection is carried out, where the litigation, arbitration, notarized court, arbitration commission, notary institution is located, and where the arbitration action is prepared, started, transited and concluded. And so on.

The place where the result of crime occurs includes the place of payment, actual acquisition, hiding place, transferring place, using place and selling place of the illegally obtained property.

Apart from the place where the crime is committed or where the suspect resides, the public security organs of other places shall immediately accept the cases of routine loans committed by citizens who turn in, report, accuse, report or surrender by the suspect. If the criminal facts are considered to have been examined, the cases shall be transferred to the public security organs with jurisdiction for handling. Criminal cases of routine lending committed by gangsters and evil forces shall be investigated by public security organs investigating cases involving gangsters, evil forces or criminal groups of evil forces. 12. Under one of the following circumstances, the relevant public security organs may investigate the cases concurrently within the scope of their duties: (1) one person commits several crimes; (2) joint crime; (3) the suspects of joint crime commit other crimes; (4) the crimes committed by multiple criminal suspects are directly related, and the concurrent handling of the cases is conducive to ascertaining the facts of the cases. 13. This Opinion has been in force since 9 April 2019. Source: Wang Zheng_N7526

Apart from the place where the crime is committed or where the suspect resides, the public security organs of other places shall immediately accept the cases of routine loans committed by citizens who turn in, report, accuse, report or surrender by the suspect. If the criminal facts are considered to have been examined, the cases shall be transferred to the public security organs with jurisdiction for handling.

Criminal cases of routine lending committed by gangsters and evil forces shall be investigated by public security organs investigating cases involving gangsters, evil forces or criminal groups of evil forces.

12. Under any of the following circumstances, the relevant public security organs may, within the scope of their functions and duties, conduct joint investigations:

(1) one person commits several crimes;

(2) joint crime;

(3) The criminal suspect who commits a joint crime also commits other crimes;

(4) There is a direct connection between the crimes committed by multiple criminal suspects, and concurrent handling of cases is conducive to ascertaining the facts of the cases.

13. This Opinion has been in force since 9 April 2019.