The Identification of "Other Especially Serious Circumstances" in the Crime of Obtaining Loans by Fraud

Huiling He

doi:10.62051/ijsspa.v8n2.05

Authors

Huiling He

DOI:

https://doi.org/10.62051/ijsspa.v8n2.05

Keywords:

Crime of Obtaining Loans by Fraud, Other Especially Serious Circumstances, Aggravating Circumstances

Abstract

Following the amendments introduced by the Criminal Law Amendment (XI), "other especially serious circumstances" has become the sole circumstantial element for sentencing gradation in the crime of obtaining loans by fraud. "Other especially serious circumstances" constitutes an aggravating circumstance within the framework of aggravated offenses by circumstances. Its determination must comply with the legal principles governing basic offenses and aggravated offenses, and it must be premised on the act having already "caused significant losses." Acts that have not "caused significant losses" should not be directly classified as having "other especially serious circumstances." Simultaneously, equivalence must be considered between "causing especially significant losses" and "other especially serious circumstances." Only conduct presenting a risk equivalent to "causing especially significant losses" can be identified as "other especially serious circumstances." In concrete identification, the focus should be on the severity of the conduct itself, combined with the systemic position of the aggravating circumstance. Factors such as amount or frequency should no longer serve as singular criteria; they must be assessed alongside the actual economic losses caused by the conduct.

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References

[1] See Zhejiang Cangnan County People’s Court Criminal Judgment No. 160 (2020).

[2] See Zhejiang Lanxi People’s Court Criminal Judgment No. 127 (2018).

[3] See Henan Anyang Long'an District People’s Court Criminal Judgment No. 173 (2018).

[4] See Anhui Huaibei Intermediate People’s Court Criminal Judgment No. 16 (2016).

[5] See Anhui Huoshan County People’s Court Criminal Judgment No. 38 (2017).

[6] See Fujian Fu'an City People’s Court Criminal Judgment No. 303 (2014).

[7] Guoxiang Sun, "Misconceptions and Corrections in the Judicial Determination of the Crime of Obtaining Loans by Fraud", Legal Studies, No. 5, pp. 55, 2016.

[8] Taiyun Huang, "Understanding and Application of the Criminal Law Amendment (VI) (Part 2)", People's Procuratorate, No. 15, pp. 22, 2006.

[9] Guoxiang Sun, "Misconceptions and Corrections in the Judicial Determination of the Crime of Obtaining Loans by Fraud", Legal Studies, No. 5, pp. 55, 2016.

[10] Guoxiang Sun, "Misconceptions and Corrections in the Judicial Determination of the Crime of Obtaining Loans by Fraud", Legal Studies, No. 5, pp. 55, 2016.

[11] Mingkai Zhang, "The Structure of the Crime of Obtaining Loans by Fraud", Tsinghua Law Journal, No. 5, pp. 29, 2019.

[12] Guangquan Zhou, "The Tenth Discussion on the Relationship between Criminal, Civil (Administrative) Law and Crime Determination", Legal Daily, pp. 11, 2021.

[13] Daocui Sun, "A New Discussion on the Crime of Obtaining Loans by Fraud", Political Science and Law, No. 4, pp. 46, 2022.

[14] Mingkai Zhang, "The Structure of the Crime of Obtaining Loans by Fraud", Tsinghua Law Journal, No. 5, pp. 29, 2019.

[15] Mingkai Zhang, Criminal Law (Vol. I), Law Press, pp. 661, 2021.

[16] Shuangbiao Yu, "On the Element of 'Serious Circumstances' in Crime Constitutive Elements", Chinese Criminal Science Magazine, No. 8, pp. 7, 2013.

[17] Taiyun Huang, "Understanding and Application of the Criminal Law Amendment (VI) (Part 2)", People's Procuratorate, No. 15, pp. 22, 2006.

[18] Daocui Sun, "A New Discussion on the Crime of Obtaining Loans by Fraud", Political Science and Law, No. 4, pp. 46, 2022.

[19] Xiongfei Chen & Hongchuan Guo, "The Composition and Legislative Model Analysis of Aggravated Offenses by Circumstances", Journal of North China Electric Power University (Social Sciences), No. 3, pp. 42, 2004.

[20] Xiongfei Chen & Hongchuan Guo, "The Composition and Legislative Model Analysis of Aggravated Offenses by Circumstances", Journal of North China Electric Power University (Social Sciences), No. 3, pp. 42, 2004.

[21] Mingkai Zhang, "Distinguishing Aggravated Constitutive Elements from Sentencing Rules", Tsinghua Law Journal, No. 1, pp. 9, 2011.

[22] Mingkai Zhang, "Distinguishing Aggravated Constitutive Elements from Sentencing Rules", Tsinghua Law Journal, No. 1, pp. 9, 2011.

[23] Xiang Li, Research on Circumstance-Based Offenses, Peking University Press, pp. 31, 2018.

[24] "Difficult Issues in the Legal Application of the Crimes of Obtaining Loans by Fraud and High-Interest Loan Transfer", The Chinese Procurators, No. 15, pp. 7, 2021.

[25] Xiuxiu Cui, On Defining the Scope of Application of the Crime of Obtaining Loans by Fraud, East China University of Political Science and Law, pp. 40, 2021.

[26] See Jiangxi Ganzhou (Prefecture) Intermediate People's Court Criminal Judgment No. 357 (2018).

[27] "Difficult Issues in the Legal Application of the Crimes of Obtaining Loans by Fraud and High-Interest Loan Transfer", The Chinese Procurators, No. 15, pp. 10, 2021.

[28] See Sichuan Chengdu Intermediate People's Court Criminal Judgment No. 348 (2014).

[29] Guangquan Zhou, "The Tenth Discussion on the Relationship between Criminal, Civil (Administrative) Law and Crime Determination", Legal Daily, pp. 11, 2021.

[30] Guangquan Zhou, "The Tenth Discussion on the Relationship between Criminal, Civil (Administrative) Law and Crime Determination", Legal Daily, pp. 11, 2021.

[31] Feiyue Wang, "On 'Times' (Ci) in Chinese Criminal Law", Journal of Yunnan University (Law Edition), No. 1, pp. 18, 2006.

[32] See Hainan Haikou Longhua District People's Court (formerly Hainan Haikou Xinhua District People's Court) Criminal Judgment No. 199 (2015).

[33] See Yunnan Anning City People's Court Criminal Judgment No. 422 (2018).

[34] See Fujian Fu'an City People’s Court Criminal Judgment No. 303 (2014) (cited in main text).

[35] See Jiangxi Fuzhou (Prefecture) Intermediate People's Court Criminal Judgment No. 22 (2019).

[36] Guoxiang Sun, "Misconceptions and Corrections in the Judicial Determination of the Crime of Obtaining Loans by Fraud", Legal Studies, No. 5, pp. 53, 2016.