骗得担保型获取贷款行为的刑法评价

The Criminal Law Evaluation of the Behavior of Obtaining Loan by Cheating Guarantee

在行为人通过骗取担保虚构合同用途进而骗得银行贷款,银行通过向担保人追偿填补贷款损失的场合,能否对此行为认定为骗取贷款罪,理论上存在的主要分歧在于是否认可事后的民事救济或损失填补能够影响刑法上的行为评价。此外,虚构合同用途是否属于欺骗手段及其与法益侵害是否存在因果关系、骗取贷款罪法条表述中其它严重情节能否包括数额巨大这两点也是罪与非罪的争议焦点。本文认为,事后的民事救济不应影响刑法上的行为定性,虚构合同用途骗取担保属于欺骗手段。骗取贷款罪中的法益为银行及其它金融机构的信贷资金安全与信誉体系,其它严重情节应包括骗取贷款数额较大的情形。当行为人骗取贷款数额巨大时,即使行为人不具有非法占有目的且银行已经完成事后追偿,对于骗得担保型获取贷款的行为仍应认定为骗取贷款罪。

In the case that the actor fraudulently uses the fictitious contract to cheat the bank for loan and the bank recovers the loan loss from the guarantor,whether this behavior can be identified as the crime of loan fraud is in dispute.The main theoretical dispute lies in whether the recognition of civil relief after the event or loss filling can affect the behavior evaluation in criminal law.In addition,whether the purpose of a fictitious contract is a means of deception and whether there is a causal relationship between it and the infringement of legal interests,and whether other serious circumstances in the description of the crime of loan fraud can include a huge amount are also the focus of disputes between crime and non-crime.This paper holds that the civil remedy after the event should not affect the nature of criminal law,and the fictitious contract is a means of deception.The legal interest in the crime of fraudulent loan is the credit fund security and credit system of banks and other financial institutions,other serious circumstances shall include those in which the loan amount is relatively large.When the amount of loan defrauded by the actor is huge,even if the actor does not have the purpose of illegal possession and the bank has completed the recovery after the event,the behavior of obtaining the loan by deceiving the guarantor should still be regarded as the crime of deceiving the loan.