Recently, Rule of Law Daily and CCTV Hot Review reported a fraud case tried by the People's Court of Chaoyang District, Beijing. The case is also known as "Meili Loan" and is considered to be superior to the segments in the popular film and television series "Anti Black Storm". The defendant released a highly paid recruitment information for a secretary in the name of the company, took the victim who came to apply for a job to a medical and aesthetic institution on the grounds that he needed plastic surgery upon entry, and induced the victim to apply for a medical and aesthetic loan on platforms such as a loan company on the grounds that he promised to reimburse plastic surgery expenses or receive a high salary to repay the loan upon entry. The loan company directly remitted the money to the medical and aesthetic institution, and the defendant and the medical and aesthetic institution were divided into 73%. Then find an excuse to refuse the victim's admission, and the victim repays the loan himself. The defendant's behavior was determined by the court to constitute a crime of fraud and was sentenced to fixed-term imprisonment and a fine. Coincidentally, on September 25th, CCTV's "First Time" column also reported on "Meili Loan", which conducted a visit and investigation on the chaos of "Meili Loan" in medical and aesthetic institutions. It is pointed out that medical and aesthetic institutions often exaggerate the importance of plastic surgery, or use skin testing to exaggerate skin problems, or even recommend expensive beauty packages to induce customers to sign up for medical and aesthetic loans after allowing them to experience low-cost skin care and causing them to experience serious skin problems. The medical beauty loan is directly credited to the account of the medical beauty institution. Its interest rate is higher than 30%, and with various medical and beauty service fees, some interest rates can reach as high as 60%, which puts a heavy burden on many customers. In the report, experts pointed out that fraud in "Meili Loan" can be solved through civil means.

 

It can be seen that whether it is "Anti Black Storm", media reports, or the "Beautiful Loan" that the court determines constitutes a crime, its common feature is the use of fraudulent means to defraud others of loans. In this way, the medical beauty loan that was originally loaned for beauty has become a "beauty loan", a synonym for fraud and deception. But why are some of the same "beauty loans" found to constitute fraud, while others are only considered civil fraud? How to distinguish between the two? In addition, "beauty loans" often involve medical institutions, loan platforms How to determine the scope of the subject of responsibility and how to divide the responsibilities of a large number of people involved? "Although the victim of the" beauty loan "was deceived, but also did receive beauty or plastic surgery services, how should the perpetrator determine the amount of fraud?"? This article intends to analyze from the two levels of crime and punishment as follows:

 

1、 An Analysis of the Crime of "Meili Loan"

 

In the "beauty loan", the perpetrator induces the victim to misunderstand the loan for beauty treatment by fabricating a high-paying position, entering a cosmetic job, or fabricating, exaggerating cosmetic surgery, or plastic surgery issues. As a result, the perpetrator obtains the loan fees from the victim, and the victim carries a heavy burden of repaying the loan. Is this use of fraudulent means, deception, and inducement of loans a civil fraud or a criminal fraud? If it constitutes a criminal fraud, is it a routine loan fraud or a common fraud crime?

 

（1） Civil fraud or criminal fraud?

 

According to the relevant provisions of China's Civil Code, civil fraud refers to a civil legal act that involves concealing the truth or fabricating facts to make the other party violate their true intentions. The fraudster has the right to request a people's court or an arbitration institution to revoke it. According to the relevant provisions of China's criminal law, criminal fraud mainly refers to the act of defrauding others' public or private property by concealing the truth and fabricating facts for the purpose of illegal possession.

 

Both have the factor of "cheating", so it is difficult to distinguish them in practice. According to the relevant provisions of China's Civil Code and Criminal Law, as well as the Supreme People's Court's "Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases" and other relevant judicial interpretations, combined with relevant cases such as the Supreme Law and the Supreme Procuratorial Guidance, this article believes that the distinction between the two should be made from an objective and subjective perspective. Firstly, objectively speaking, in civil fraud, the perpetrator uses fraudulent means of fabricating facts and concealing the truth in order to facilitate transactions. This means is only intended to increase the trust of the victim or reduce the concerns of the victim, and does not reach the level of causing the victim to fall into a false understanding and dispose of his or her property by mistake. In criminal fraud, the perpetrator uses a fraudulent method of fabricating facts or concealing the truth, the content of which is to obtain the property of the victim. The fraud reaches the level of causing the victim to misunderstand and dispose of their own property wrongly. Therefore, objectively speaking, the main difference between the two lies in the content and extent of fraud. Subjectively, civil fraud does not have the purpose of illegal possession of criminal fraud. Its subjective purpose is to induce the other party to trade with it through fraudulent means, thereby achieving the goal of making money through legitimate performance. For example, in loan fraud, the subjective purpose of a lender is to seek benefits through lending to obtain interest, rather than directly illegally occupying the borrower's property. If false claims are established through fraudulent means and realized through other means, illegally obtaining property from others, it constitutes criminal fraud. Another example is the Wu Lianda Contract Fraud Case in the Supreme Court Gazette. The reason why the two-level court found him innocent is that although Wu committed fraud in signing the contract, his purpose was not to illegally occupy the property of others, but rather to hope for the signing and smooth performance of the contract. Its positive performance has also been proven, so it does not constitute a crime.

 

In the "beauty loan", the nature of its fraud varies depending on the way it is committed.

 

The first type of fraud is to exaggerate the severity of skin problems through skin testing, falsely claim to require expensive beauty package treatment, and induce others to sign a medical beauty loan. Subjectively, the subjective purpose of such exaggerated, fictional, and induced loans by medical and aesthetic personnel is to make others accept beauty services and earn service fees through beauty services; Objectively, this type of skin detection fraud is insufficient to mislead others into misconceptions, reaching the point of paying for expensive cosmetic expenses through loans. Therefore, this act is civil fraud. However, if the subjective purpose of medical and aesthetic personnel in this way is to defraud the victim of medical and aesthetic loans in the name of beauty service fees, it constitutes criminal fraud. The main manifestations are: medical and aesthetic personnel do not provide beauty services after obtaining medical and aesthetic loans, or provide extremely cheap beauty services that are extremely disproportionate to the amount of medical and aesthetic loans. In this process, the victim mistakenly assumed that he could accept expensive services and suffered losses on the loan. Therefore, in this case, the fraud of medical and aesthetic personnel directly leads to the victim's erroneous understanding and disposition of property, which belongs to criminal fraud.

 

The second type of fraud is: deliberately using low-cost skin care, causing skin damage, falsely claiming to require expensive beauty package treatment, and inducing others to sign a medical beauty loan to pay for beauty. The main fraudulent behaviors of medical and aesthetic personnel are: attracting others to do skin care at low prices; Causes serious skin problems through skin care; Propose expensive beauty package treatments; Induce others to sign medical and aesthetic loans. Here, the purpose of fraud by medical and aesthetic personnel is clear, which is to induce the signing of medical and aesthetic loans to pay beauty fees by causing damage, causing the victim to generate strong false trust, and receiving expensive treatment. Here, the fraud of medical and aesthetic personnel directly causes the victim to fall into the wrong understanding of the need for loans for beauty, and has a strong decisive impact on the wrong disposition of property. It creates reasons for the victim's need for beauty out of thin air, inducing the loan to have the purpose of illegal possession, and therefore belongs to criminal fraud.

 

The third type of fraudulent behavior is: medical and beauty institutions combine with small loan companies or professional lenders to induce others to sign usury contracts. The fraudulent behaviors include exaggerating the need for beauty or plastic surgery, and inducing others to sign fraudulent loan contracts. If the purpose of this fraudulent act is to allow others to sign usury contracts and earn high interest, it does not have the purpose of illegal possession and does not constitute criminal fraud. However, if the perpetrator fraudulently causes the victim to sign a usury contract, establish false claims, and illegally obtain the victim's property by creating a breach of contract, the perpetrator has the purpose of illegal possession, constituting criminal fraud.

 

The fourth type of fraud is: fabricating high-paying positions, performing cosmetic surgery on entry, promising to pay fees or pay high salaries to repay loans, and tricking doctors and nurses to obtain loans. Objectively, the perpetrators of such "beauty loans" have taken a number of fraudulent actions, luring victims to take loans for cosmetic surgery, and obtaining loans from victims. Here, the victim did not have the need for plastic surgery loans, and was lured by high salaries, plastic surgery induction, commitment to repay the loan, etc., to make a loan for plastic surgery. The perpetrator obtained a loan from the victim and the victim suffered losses due to the loan. It can be seen that the content of the perpetrator's fraud is to defraud the victim's property, and the degree of fraud has directly determined the victim's erroneous understanding and erroneous control of property; Subjectively, the purpose of the perpetrator is to defraud the victim of a loan for plastic surgery expenses. This is evidenced by a series of fraudulent acts committed by the perpetrator and a high proportion (up to 73%) of their share with plastic surgery institutions. Therefore, this "beautiful loan" is not a civil fraud but a criminal fraud, as long as the amount is large, it constitutes a crime of fraud.

 

（2） "Meili Loan" is not equivalent to routine loan fraud

 

Some online reviews mentioned that "Meili Loan" was a victim of a routine that trapped the victim in a loan fraud trap. So "Meili Loan" is a routine loan fraud?

 

Arbitrage lending is not an independent crime. According to Article 1 of the Opinions on Several Issues Concerning the Handling of Criminal Cases of "Arbitrary Loan" issued by the Two High and Two Departments in 2019, "Arbitrary Loan" refers to the use of illegal possession as a purpose, using the name of private lending to induce or force victims to sign relevant agreements such as' lending 'or disguised' lending ',' mortgage ',' guarantee ' A generic term for illegal and criminal activities involving the formation of false claims and debts through the destruction or concealment of repayment evidence, and the illegal possession of the victim's property through litigation, arbitration, notarization, or violence, threats, or other means. In fact, it is a term for illegal and criminal acts related to routine loan sharks. According to Professor Chen Xingliang's viewpoint, the crime of arbitrage loan is divided into two steps: the first step is to establish false claims through lending; The second step is to further seize fraudulent property and realize false claims through illegal detention, false litigation, and provocation. Therefore, the main characteristics of arbitrage loan fraud are: subjectively taking illegal possession as the purpose; Objectively: Using the name of private lending to induce or force the victim to sign relevant agreements such as' lending 'or' lending ',' mortgage ',' guarantee 'in disguised form, form false debt obligations by falsely increasing the loan amount, maliciously creating a default, arbitrarily identifying a default, and destroying repayment evidence, and illegally occupy the victim's property through litigation, arbitration, notarization, or using violence, threats, and other means.

 

Obviously, "Meili Loans", although they have routines, are not all routine loans. "Only when the perpetrator establishes a large amount of false claims with a small amount of loans, forms false claims and debts by falsely increasing the loan amount, maliciously creating a default, recklessly identifying a default, destroying or concealing repayment evidence, and illegally occupies the property of the victim through litigation, arbitration, notarization, or using violence, intimidation, or other means, is considered a fraud in routine loans.".

 

If the perpetrator subjectively only aims at illegal possession, and objectively induces the victim into misconceptions, the victim loans for cosmetic surgery, the perpetrator obtains loans, and the victim loses property, and the amount is relatively large, it constitutes a common crime of fraud in accordance with Article 266 of the Criminal Law. It can be seen that fraud in arbitrage loans and ordinary fraud are only differences in means.

 

In practice, the perpetrators of "Meili Loan" resort to violence, threats, or other means to pursue debt, which is not only a means to implement false claims in routine loans, but also a situation that victims often encounter in ordinary fraud crimes. According to Article 293-1 of the Criminal Law of the People's Republic of China, if the perpetrator uses violence, coercion, or the means of restricting the personal freedom of another person, or invading another person's residence, or intimidating, tracking, or harassing another person to collect illegal debts arising from usury lending, and if the circumstances are serious, it constitutes the crime of collecting illegal debts.

 

2、 An Analysis of the Penalty of "Meili Loan"

 

"Meili Loan" constitutes a crime of fraud, which involves personnel from relevant institutions such as medical institutions and loan platforms. It usually has a large number of people and involves a wide range of issues. The subject of the crime and the division of responsibilities need to be paid attention to; At the same time, because the amount of fraud directly determines the severity of the perpetrator's punishment, and because the victim of the beauty loan has actually received plastic surgery or beauty services, the determination of the amount also needs to be analyzed.

 

（1） The scope and responsibility division of the subject of conduct

 

The fraud of "Meili Loan" involves personnel from medical and aesthetic institutions and loan institutions. If the perpetrator is not a member of a medical beauty institution or a loan institution, and he or she did not conspire with the medical beauty institution or the loan institution before committing the fraud, then the medical beauty institution or the loan institution personnel do not constitute a joint fraud crime; "If the three parties conspire in advance, have a joint intent to defraud, or have a joint fraudulent act, it constitutes a joint fraud.". The principal and accessory offenders can be divided according to their role.

 

If the perpetrator is a member of a medical beauty institution or a loan institution, if the perpetrator's behavior is an individual, it constitutes a crime; If the person in charge of the institution instructs the staff to use specific scripts to defraud customers of loan fees. The person in charge of medical aesthetics and the person directly responsible constitute a joint crime, and the principal and accessory offenders are distinguished according to the circumstances of the crime.

 

（2） Determination of fraud amount

 

According to Article 266 of the Criminal Law of the People's Republic of China, anyone who swindles public or private property and the amount involved is relatively large shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance, and shall also, or shall only, be fined; "If the amount involved is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined;"; "If the amount involved is especially huge or there are other especially serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined or sentenced to confiscation of property.". According to Article 1 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Fraud", "Those who defraud public or private property with a value of 3000 to 10000 yuan or more, 30000 to 100000 yuan or more, or 500000 yuan or more shall be respectively recognized as' large amount ',' huge amount ', or' particularly large amount 'as stipulated in Article 266 of the Criminal Law.". The term of imprisonment for the crime of fraud is directly related to the amount of fraud. It can be seen that the amount of fraud in the crime of fraud determines the existence and severity of the penalty.

 

First, the calculation of the actual amount defrauded. In the "Beauty Loan", the perpetrator fraudulently obtained a cosmetic surgery loan. Although the perpetrator usually inflated the cost of the cosmetic surgery at the time of the loan, the victim did receive cosmetic surgery services. Therefore, there is a dispute as to whether the amount of fraud committed by the perpetrator should be identified and deducted based on the price of cosmetic surgery services.

 

Regarding the calculation and deduction of the amount, according to the "Telephone Response of the Research Office of the Supreme People's Court on How to Determine the Amount of Fraud in the Case of Shenfu Qiang Fraud", when specifically determining the amount of a fraud crime, the amount of the fraud that has been recovered before the incident should be deducted and calculated based on the final actual amount of fraud obtained; "The Supreme People's Court pointed out in the Minutes of the National Symposium on the Trial of Financial Crimes by Courts in 2001 that when determining the specific amount of financial fraud crimes, it should be calculated based on the actual amount defrauded by the perpetrator.". The intermediary fees, handling fees, rebates, etc. paid by the perpetrator for the purpose of carrying out financial fraud activities, or the fees used for bribery, gifts, etc., shall be included in the criminal amount of financial fraud. "However, the amount returned before the crime should be deducted." That is, only the amount recovered or returned before the crime is deducted. In judicial practice and the "Meili Loan" judgment of the Chaoyang District Court of Beijing, it is a common practice not to deduct the actual service fees incurred by the victim in determining the amount of fraud. That is, in the "beauty loan", the fraud amount is calculated based on the victim's loan amount. The main reason for this is that the services provided by the perpetrator to the victim are all criminal means and belong to criminal costs, which should not be deducted.

 

Secondly, the calculation method of negative evaluation is made on the whole. The first paragraph of Article 6 of the Opinions on Several Issues Concerning the Handling of Criminal Cases of "Routine Loans" issued by the two high and two ministries stipulates that when determining the criminal amount of "routine loans", it should be distinguished from private lending, and the overall negative evaluation should be made. The "false high debt" and the property illegally possessed by suspect and defendants in the name of "interest", "guarantee money", "intermediary fees", "service fees", "liquidated damages" should be included in the amount of crime. In determining the amount of "Meili Loan", which belongs to arbitrage loan fraud, it should also be evaluated as a whole.

 

Third, the amount of crime should be determined in accordance with the principle of joint crime punishment. For "Meili Loan" joint crime, it is necessary to strictly follow the punishment principles of criminal law for joint crimes. If there is a "Meili Loan" criminal group, the ringleader shall determine the total amount of crime committed by the group, the amount of crime committed by the principal offender with his participation or organization or command, and the amount of crime committed by the accessory offender with his participation.

 

3、 Summary

 

In short, "Beauty Loan" is a beautiful trap. For job seekers, it is necessary to be vigilant and defensive, and not be deceived by high salaries and cosmetic surgery. For loans for cosmetic surgery and beauty consumption, we should act within our capabilities, and do not consume excessively due to vanity; When job seekers discover that they have been cheated, they should promptly call the police for help.

 

To eliminate "beautiful loans", for the medical and beauty industry and loan financial institutions, it is necessary to follow professional ethics. As advocated in the "Proposal on Standardizing Financial Products and Services Related to Medical Beauty" issued by the China Internet Finance Association, financial institutions should choose third-party medical beauty institutions with complete certificates and legal compliance operations to cooperate, and establish relevant mechanisms to regularly assess their legal compliance. If there are violations, cooperation should be immediately stopped; Strictly abide by various regulations of the financial regulatory department, fully evaluate the repayment ability of consumers in accordance with the principle of appropriateness when providing medical and beauty related financial products and services, independently determine customer credit lines and loan pricing standards, and properly control risks; For college student consumers, financial institutions should strictly comply with the relevant regulations of the financial regulatory department on college student consumer loans; Do not use improper methods such as false, misleading, or inductive propaganda to induce consumers to consume excessively or accept loans that exceed their risk perception and repayment ability.

 

(This article is translated by software translator for reference only.)