担保型双重欺诈行为性质的认定

Nature Identification of Double Fraud under Effective Guarantee

对于行为人通过欺骗担保人而获得真实有效的担保的情况下,再向金融机构申请贷款的双重欺诈行为,在司法实践中会出现同案不同判的情形。在此类案件中,由于出现了三方法律关系,民事关系与刑事行为的交叉混合,使得行为性质的认定出现了一定的困难。其实,在此类案件中,争议的焦点就在于认定银行等金融机构的财产是否遭受损失以及行为人的行为是否侵害到金融管理秩序的法益。当行为人具有非法占有的目的时,其行为只构成合同诈骗罪而不构成贷款诈骗罪,当行为人没有非法占有的目的时,其行为根本不构成犯罪,行为人、担保人与金融机构之间只存在民事法律关系。

As for an perpetrator who obtains a real and effective guarantee by deceiving the guarantor, the double fraudulent act of applying for a loan to the financial institution may result in different judgments in similar cases in judicial practice. In such cases, because of the emergence of three methodological relations, the mixing of civil relations and criminal behavior has made certain difficulties in the nature identification of this behavior. In fact, in such cases, the focus of the dispute lies in determining whether the property of a financial institution, like a bank, has suffered losses and whether the behavior of the perpetrator has violated the legal interests of the financial management order. When the perpetrator has the purpose of illegal possession, his behavior only constitutes the crime of contract fraud rather than a crime of loan fraud. However, when the perpetrator does not have this illegal purpose, no crime is committed by his behavior at all. There is only a civil legal relationship among the perpetrator, the guarantor and the financial institution.