骗取贷款罪中“重大损失”之理解

Understanding"any significant loss"in the crime of obtaining a loan by deceptive means

虽然《中华人民共和国刑法修正案(十一)》已经修改骗取贷款罪的入罪条件,然而关于重大损失的数额计算、产生时间和体系位置等问题的学理讨论尚不充分。重大损失不应包括放贷利息,其产生于贷款到期之后。将重大损失理解成骗取贷款罪客观处罚条件的观点,不符合立法修改主旨和刑法条文内在逻辑,缺乏刑事政策上的合理性。客观超过要素理论本身存在缺陷,其也不适合描述重大损失在骗取贷款罪中的体系位置。骗取贷款罪中“重大损失”与“特别重大损失”直接影响行为刑事可罚性,属于骗取贷款罪的构成要件要素。

Although the elements of crime for the crime of obtaining a loan by deceptive means is amended in the Amendment(XI)to the Criminal Law of the People's Republic of China,the scientific and theoretical discussions about the calculation of amount in any significant loss,the time incurring any significant loss and the system position of any significant loss are far from adequate.Any significant loss should not calculate the interest of the loan since it occurs after the loan is due.The view that any significant loss is interpreted as the objective punishment elements in the crime of obtaining a loan by deceptive means does not match the purpose of the Amendment(XI)and the inherent logic of articles in the criminal law,lacking the rationality of the criminal policy.The theory of objective surpassing element has its own defects,and is not suitable for the description of the system position of any significant loss in the crime of obtaining a loan by deceptive means."Any significant loss"and"especially serious circumstance"in the crime of obtaining a loan by deceptive means directly affect the punishable of the criminal conduct,which falls into the constitutive elements in the crime of obtaining a loan by deceptive means.