贷款诈骗罪担保条款解释适用研究

The Study of Application about the Crime of Loan Fraud's Warranty Clause

由于《刑法》第193条贷款诈骗罪第四项担保条款的内容过于简单狭隘,且涉及多个部门法的交叉运用,引发了实务中贷款诈骗罪的诸多争议。对此,首先应依据不同担保方式在贷款诈骗行为中的作用机理来确定罪刑:保证担保中保证人是否知情,涉及贷款诈骗罪与相关经济犯罪的区分;抵押担保、质押担保中担保物之本身、来源、去向存疑,涉及贷款诈骗罪与相关财产犯罪的区分。其次,担保合同的履行在法律效果上阻却了借款人对银行的贷款诈骗罪,处罚漏洞的填补应转向考察借款人对真实权利人的财产犯罪。

Many disputes are appeared in the practice of the crime of loan fraud due to the simplicity of the item 4 No. 193 warranty of the Criminal Law and the cross application of many laws. On this issue, firstly, the crime should be determined by the mechanism of the ways of the guaranty in the behavior of fraud crime of loan ： whether the warrantor t knows the facts or not distinguishes the crime of loan fraud and the related economic crimes. When there is query on the guaranty itself, its origin and its disposition involves the crime of loan fraud and related crime against property ; secondly, the performance of guarantee contract prevents the borrower＇s crime on the bank, then the punishment should be transferred to investigate the crime against property on the real obligee.