Whether borrowing money without paying back is fraud or not, it is necessary to introduce a concept, that is, borrowing fraud.
Lending type fraud refers to the fraud mode in which the actor defrauds public and private property in the form of borrowing for the purpose of illegal possession. Such crimes are very common in daily life. Criminals usually cheat under the guise of private lending, and most of them occur between relatives, friends, and acquaintances. Therefore, they have certain similarities with creditor's rights and debt disputes in civil cases. In practice, it is difficult to identify "loan type" fraud. The key point is that if the actor himself has no ability to repay and does not actually bear the responsibility for repayment, it can be presumed that the actor has the purpose of illegal possession when borrowing money. However, the subsequent sudden repayment behavior of the perpetrator may break this presumption, and in practice, the police coordinate both parties to sign the repayment agreement more ambiguous, which makes it difficult to identify "loan type" fraud. Therefore, other factors should be comprehensively considered to determine whether it is a general folk loan or a "loan type" fraud.
The comparison between "loan type" fraud and private lending:
1、 The subjective intention of the actor's illegal possession is different.
The fraudster has the intention of illegal possession subjectively, that is, the actor has the intention of not returning the money when borrowing. The crime of fraud takes the perpetrator's illegal possession as the subjective constituent element. Therefore, the fraudster's "borrowing" is just a false pretence, and there is no intention to return it subjectively. While normal borrowers have the intention to repay when they borrow money, they often cannot repay debts in time due to objective reasons.
The purpose of "illegal possession" can be judged from the following objective aspects:
（1） The reason and actual use of the money borrowed by the actor. In normal private lending, the borrower will inform the creditor of the true purpose of the loan, so that the creditor can know the purpose and risk of the loan funds, and make a decision. In fraud cases, criminals usually fabricate some false borrowing purposes, such as investment, project construction and other legitimate and lucrative projects, so that the victims have the wrong understanding that their loaned funds are safe and can be recovered in time. In fact, after obtaining the loan, the criminal will use the money for some high-risk or uncollectible activities, such as gambling and self spending, which will lead to the victim's uncollectible funds. The actual use of the funds by the actor will reflect whether the borrowing is intended for illegal possession, and the similarities and differences between the reasons for borrowing and the actual use can also reflect whether the actor has an objective act of fabricating facts or concealing the truth when borrowing, which is an important basis for investigating the subjective mentality of the actor.
（2） The financial status of the actor when borrowing: The financial status of the actor when borrowing is an important factor to judge whether he is ready to repay the loan. The actor's financial status can accurately grasp the actor's true mentality in combination with his use of the loan. In many fraud cases, when the perpetrator is heavily in debt or has no ability to repay, he or she pretends to be a rich person or has the ability to repay by fabricating facts, such as falsely claiming to own a house, land, luxury car, etc., and after defrauding the loan, he or she squanders so much that the loan cannot be repaid. In such cases, it should be determined that the perpetrator has no intention to repay the loan. On the other hand, if the actor himself has good property conditions, although he obtained the loan through fictitious reasons and other means, and used it in gambling and other activities, causing the loan to be unable to be repaid on time, but his other property, such as real estate, cars, stocks, etc., can ensure that the interests of the creditor will not be lost, the actor should be deemed to have the intention to return the loan, and should not be deemed as fraud.
（3） Whether the actor conceals his real identity or conceals his whereabouts: in the loan type fraud, the criminal will use a false name, address or certificate to cover up his real identity before committing a crime, and then disappear when he can. Some criminals use their real identities, but they hide their whereabouts by changing their mobile phone numbers, changing their places of residence and other methods after defrauding the loan or during the victim's recovery process. These behaviors can also reflect the subjective attitude of the actor who is unwilling to return the loan, which is an important basis for judging the nature of the actor. In the process of judging the subjective intention of the actor, the above three points should be combined for comprehensive analysis and judgment to accurately grasp whether the actor has the intention of illegal possession.
2、 The actors adopt different ways
When the fraudster borrows money, he will use the means of fabricating facts and concealing the truth, which will cause the victim to have a wrong understanding, such as fabricating the loan for some investment or profit-making activities, or fabricating his own financial situation, so that the victim mistakenly believes that he has the ability to return. In normal lending, the borrower often truthfully tells the purpose of the loan, and rarely uses deception.
3、 Actors have different attitudes towards loans
The fraudster will not consider returning the property after obtaining the property, so he has no concern and restraint in the use of the property, which directly results in the loss of the property, such as using the loan for gambling, drug abuse or personal extravagance; In private lending, the borrower has the ability to repay the loan itself, or use the loan in a way that can generate legitimate income to guarantee the repayment of the loan.
