自我答责基准下骗取贷款行为的出罪认定

Analysis of the Identification of Decriminalization of Loan Defrauding from the Perspective of Self-Responsibility Benchmark

骗取贷款行为刑法规制成效不容乐观,亟待反思与完善。在类型化梳理骗取贷款行为司法判例作实证研究的基础上,提倡在被害人自我答责理论指导下对骗取贷款行为适时考虑对借款人予以出罪,相应追究贷款人自身的法律责任。消极责任主义和实质刑法解释学的刑事法治立场可为这一举措提供理论上的助益。实践中应根据罪刑法定原则作目的性限缩解释以确保在自我答责下实现借款人出罪与贷款人归责的合理性,而不可任意扩大其适用范围。该举措旨在寻求平衡与协调借款人与贷款人之间借贷利益关系的有效路径以切实解决融资难等实际问题,进而既全面有效保护借贷双方法益,又有利于促进我国社会主义市场经济创新与协调发展。

The current criminal law on loan defrauding is flawed. It requires reflection and improvement. On the basis of an empirical research into the precedent loan defrauding cases, under the guidance of the self-responsibility theory, this article advocates the timely decriminalization of the borrower as the victim and calls to account the lender＇s legal responsibility. Legal enforcement on negative responsibility and the practical criminal law interpretation provides support for this measure. The rati- onale of the decriminalization of the borrower and the legal responsibility of the lender should be ensured according to the prin- ciple of a legally prescribed punishment for a specified purpose, instead of any arbitrary expansion of its application. Its purport is to seek an effective path for the balance and coordination between the borrower and the lender in their interest relationship, so as to solve actual problems such as financing difficulties in practice, which is a comprehensive and effective protection for both sides＇ legal interests, and is an innovation and harmonious development of the socialist market economy in our country.