骗取贷款罪的规范解释——以利益法益观为视角

The Normative Interpretation of the Crime of Defrauding Loans——From the Perspective of the View of Interests and Legal Benefits

经济刑法具有保护“超个人法益”的属性,以利益法益观为立场,骗取贷款罪保护法益的定位应当还原为金融机构的财产利益,具体是金融机构的债权。借款人在取得贷款时即获得信贷资金的所有权,借贷期限届满而无法偿还导致债权落空时方构成本罪,这也是“给金融机构造成重大损失”的应有之义。客观要件上,贷款诈骗罪的行为方式并不能宜接套用于骗取贷款罪,应当改变原本的以欺骗手段取得贷款则构成骗取贷款罪的认定思路,具体可以将骗取方式类型化为虚构贷款用途和欠缺贷款资格,进一步考察是否具有导致债权丧失的结果或危险。主观要件上,非法占有目的的排除则需以取得贷款时为节点,综合行为人对取得贷款的客观使用是否以实现债权为中心来推断其主观偿还意愿的有无。

Economic crimes have the property of protecting**super-personal legal interests".Taking the view of interests and legal interests as the standpoint,the positioning of the crime of defrauding loans to protect legal interests should be restored to the property interests of financial institutions,specifically the creditor's rights of financial institutions.The borrower obtains the ownership of the credit funds when he obtains the loan.This crime is only constituted when the loan term expires and the debt cannot be repaid,which is also the proper meaning of"causing heavy losses to financial institutions".In terms of objective elements,the behavior of the crime of loan fraud cannot be direcdy applied to the crime of defrauding loans.The original idea that obtaining loans by deceptive means constitutes the crime of defrauding loans should be changed.Specifically,the methods of defrauding can be classified into fictitious loan purposes and deficiencies.Loan eligibility,and further examine whether there is a consequence or danger of loss of creditor's rights.In terms of subjective elements,the exclusion of the purpose of illegal possession needs to be based on the moment when the loan is obtained,and the subjective willingness to repay is inferred by considering whether the actor's objective use of the obtained loan is centered on the realization of the creditor's rights.