Author

Anisimov V.F., Chesnokov M.V.

Title of article

Lending fraud: general or special subject of crime?

Section

Section 3. Criminal Law

Issue, year

1 (35) 2016

Abstract

The peculiarities of a special subject of crime under article 159.1 of the RF Criminal Code require referring to civil legislation revealing the content of its features. Such feature is the status of the borrower. Adaptation of civil law rules to the practice of criminal legislation application creates a number of problems. Analysis of banking documents and judicial practice concerning lending fraud proves the existence of contradictory opinions on the nature of the subject (general or special) of this crime, because the person acquires the status of the borrower only after signing the loan agreement. But the submission of the obviously false and (or) unreliable information to the bank or another creditor is performed by the person before signing the loan agreement, i.e. until the moment of becoming the borrower. The features of the subject of lending fraud are analyzed, as inaccuracies of its determining are the reason for refusal to prosecute the criminals. Application of Article 159.1 of the RF Criminal Code while preparing fraud or during attempted fraud in the credit sphere without the concluded loan agreement can solve the problem, but the problem of special subject (the borrower) is maintained in the norm disposition. It’s proposed to exclude special subject from part 1 of Article 159.1 of RF Criminal Code by setting out the norm as follows: “lending fraud, i.e. cash theft by submission of the obviously false and (or) unreliable information to the bank or another creditor”. This will allow to bring to justice the persons aimed at cash theft by concluding loan agreement.

Keywords

special subject; fraud; loaning; borrower; attempted crime.