【作者】 黄嵩；

【导师】 刘明祥；

【作者基本信息】 武汉大学 ， 刑法学， 2004， 博士

【摘要】 目前,我国贷款诈骗犯罪形势非常严峻,贷款诈骗罪已经成为我国经济领域中一个常见、多发、社会危害性极其严重的犯罪。特别是近年来,随着我国社会主义市场经济的加速度发展,社会所有制日益多元化并且逐步得到我国宪法的明确保护,贷款诈骗违法犯罪现象也随之呈现出诸多新的特点,使得理论和司法实践层面遭遇一系列新的问题,现行刑法关于贷款诈骗罪的有关规定在许多方面已经不能满足实践的需要,不利于遏制日益猖獗的贷款欺诈违法犯罪活动。因此,对贷款诈骗罪进行系统深入的研究就具有重要的理论和实践意义。 何谓贷款诈骗罪,按照我国刑法学界较有影响观点,是指“以非法占有为目的,诈骗银行或者其他金融机构的贷款,数额较大的行为。”本文认为这一概念尚不能准确全面反映贷款诈骗罪的本质特征,在借鉴诸多学术观点的基础上,结合新形势下贷款诈骗犯罪呈现的新特点,本文将贷款诈骗罪的概念界定为:以非法占有为目的,在签订、履行借款合同过程中,用虚构事实或隐瞒真相的方法,使银行等金融机构产生错误认识并向行为人或与其有利害关系的第三人交付(或处分)数额较大的贷款或者贷款性利益的行为。 贷款诈骗罪侵犯的客体,具有复杂性和主次性两个特征,即首先侵犯了信贷秩序,同时侵犯了公私财产所有权,其中信贷秩序是主要客体,公私财产所有权是次要客体。贷款诈骗罪的犯罪对象的范围只能限定为银行或其他金融机构的贷款或贷款性利益,即贷款人以信用贷款或者担保贷款的形式向金融机构所借的贷款,或者银行等金融机构在发放贷款后形成的贷款债权。在认定贷款诈骗罪对象时存在一些疑难问题,主要是对授信额度、委托贷款、国际商业贷款、缺乏信贷业务资格发放的贷款、银行信用、贷款担保人的财产以及金融机构违规操作的帐外资金等是否也可以构成贷款诈骗罪的对象的模糊认识,本文逐一详细进行了分析。 关于贷款诈骗罪客观方面所包含的内容,本文在分析比较了诸多不同的观点之后,结合新形势下打击贷款诈骗违法犯罪的需要,将其界定为:贷款诈骗罪的客观方面,表现为在借款合同的签订和履行过程中,用虚构事实、隐瞒真更多还原

【Abstract】 Presently, fraud crime of loan is serious in China, and fraud crime of loan has become one kind of crime which is common, frequent and with very bad social effect in economic field in this country. Especially in recent years, fraud crime of loan has shown many new characteristics with development of socialist market economy in accelerated speed in China and polarization of social ownership clearly protected by the constitution of China step and step. This makes theory and juristic practice confront a series of new problems; regulation related to fraud crime of loan in the current criminal code can not meet the requirement of practice in many respects and is not good for suppressing criminal activities of loan fraud which are more rampant. Therefore, studying fraud crime of loan systemically and deeply is important in theory and practice.Then, what is fraud crime of loan? According to the viewpoint with greater effect in the circle of criminal jurisprudence in China, fraud crime of loan refers to ’its purpose is to illegally possess the capital of bank or other financial institution in large amount’. The author thinks that this concept still cannot reflect the essential characteristic of fraud crime of loan comprehensively and accurately. Based on a lot of academic viewpoints and in combination with new characteristics of fraud crime of loan at present, this article defines the fraud crime of loan as behaviors that to make bank and other financial institutions wrongly believe and deliver (or punish) great sum of loan or loan interest to actor or the third person who has interest with the actor with purpose of illegal possession and by means of weaving fact and disguising truth in signing and implementing of the contract of borrowing money.The object of fraud crime of loan has complexity and primary and secondary characteristics, namely, it firstly disturbs credit order as well as property ownership of public and private, which is secondary object. The scope of object of crime can only limits loan and loan interest of bank or other financial institution, namely, accommodator lends loan from financial institution in the way of credit or secured loan, or financial claim of loan caused by loan of bank or other financial institutions. There are difficult problems when determining subject of fraud crime of loan. It ismainly not clear whether credit extension line, loan by mandate, international commercial loan, loan without qualification of credit operations, bank credit, property of loan guarantor and fund not in account through violation operation by financial institution can constitute subjects of fraud crime of loan. The author will give detailed analysis in this article one by one.After comparing many different viewpoints and combining requirement of blowing fraud crime of loan in new conditions, the author gives one definition of the content included in the subjective side of fraud crime of loan, namely the subjective side of fraud crime of loan refers to behaviors that cheat loan or gains of loan (creditor’s right of loan) of great sum from banks or other financial originations by means of weaving fact and disguising truth in signing and implementing of the contract of borrowing money. The author believes that time and ways should be grasped tightly to understand behavior of fraud crime of loan. Firstly, time factor in signing and implementing contract of borrowing money should be grasped tightly. Generally, intent of fraud crime of loan should originate in applying loan, namely in signing contract of borrowing money. However, intent of fraud crime of loan does not originate in applying loan, but intent of invading the loan originates after getting loan, namely in implementing contract. Then, some cheating behaviors such as false reform, false bankruptcy and appropriation of assets will be adopted, weaving facts, disguising truth, lying that capacity of discharging loan does not exist and not paying the expired loan for a long time to realize aim of possessing the loan finally, yet these behaviors are not be determined as fraud crime of loan usually. In this article, the author believes that behaviors aiming at gains of loan in implementing contract of borrowing money can also constitute fraud crime of loan. Secondly, means of weaving fact and disguising truth also should be grasped tightly. In this article, the author analyses the five behaviors style of fraud crime of loan listed in the article 193 in the criminal code of China one by one, focuses on some difficult problems in theory and practice, such as scope of false economic contract, false certificate, false property certificate, definition of ’cheating loan with other means’ and the common and special methods (such as cheating loan in mortgage) and clarifies and discriminates these problems. To result of fraud crime of loan, besides providing the result of bringing loss of loan in greater sum to financial organizations in narrowsense, the author believes that the result of this crime should also include the general results caused by behaviors of cheating loan in general sense: the first one is the financial organizations make mistakes, second the financial organizations punish the loan at their will base on error of cognition and third the actor get loan or is exempted from obligation of discharging loan. Only all of the above factors exist simultaneously, the unaccomplished status of fraud crime of loan can be constituted.To subject of fraud crime of loan, the author emphasizes and discuses some special cases of the subject of this crime: firstly, whether the warrantor of loan can constitute the subject of the fraud crime of loan? Secondly, clerks in financial organization can constitute the subject of the fraud crime of loan? In addition, only the natural body can constitutes the subject of fraud crime of loan according to the current criminal code of China. However, there are a lot of cases that the units behave fraud crime of loan in real life. Especially in recent years, ways of cheating loan behaved by units are increasing and the sum of cheated loan is more astonishing with promotion of ’cheating loan by reforming’ and ’cheating loan by bankrupting’. Cheating loan behaved by units has been one social cancer in market economy, and some positive and practical measures must be adopted to blow and restrict these behaviors. Therefore, the author discusses characteristics, common means and punishment of cheating loan behaved by units with a great space in this article.The intent and purpose of crime should be grasped in analyzing the subjective aspects of fraud crime of loan. To intent of fraud crime of loan and its determination, the author focuses on and analyses two difficult problems in this article: firstly, in cognitive respect, how to deal with the case when the material for applying loan is false subjectively, but the actor is beclouded and do not know. In this case, the actor can not be determined that he has committed fraud crime of loan, but nature of the people who provides false material for the actor should be determined according to the concrete conditions; secondly, in respect of will, whether ’indirect intent’ of ’letting’ the originating of loss of loan can constitute fraud crime of loan or not? In this article, the author believes that indirect intent cannot constitute fraud crime of loan, and the objective side of fraud crime of loan only can be direct intent. In juristic practice, some cases of cheating loan is similar to indirect intent, however they are cases of direct intent, these cases can be mixed and different conditions should beconsidered in determining nature of these cases. In addition, the objective side of fraud crime of loan should also include the term of ’the purpose is to possess with illegal means’. The author thinks that application of the word ’possess’ in term of fraud crime of loan can not be simply similar to the word ’occupy’ in civil code, and its real application is ’possessing’; to the problem that whether the term of ’the purpose is to possess with illegal means’ is necessary or not, there are different viewpoints of ’necessary’ and ’unnecessary’ traditionally in countries adopting continental law family. In this article, the author holds that it is more suitable to adopt the ’necessary’ viewpoint based on the current legislation of criminal code in China; to determination of term of ’the purpose is to possess with illegal means’, the author believes that determining the term of ’the purpose is to possess with illegal means’ correctly is one of the key factors to correctly define whether the case is fraud crime of loan or not, and the case is what kind of crime, and it is very important. At same time, it is one difficult problem to certificate the actor whether has the purpose of possessing the loan with illegal means in cheating loan or not in investigation, prosecution and judgment of almost all of cases of cheating loan, and it is necessary to adopt the method of ’juristic induction’ to help make determination; to time of ’possessing the loan with illegal means’, it is generally regarded as beginning before applying loan or in applying loan. In this article, the author holds that the actor produces intention to illegally possess the loan after getting it may still be constitute the fraud crime of loan.There are other problems related to determination of fraud crime of loan. To limit between constituting fraud crime of loan and not constituting fraud crime of loan, the author mainly discuses limit between fraud crime of loan and dissension of debit and credit, limit between fraud crime of loan and cheating behavior of loan and legislative nature of behavior of implementing power with means of cheating loan; to the limit of fraud crime of loan and relative crimes, the author focuses on limit between the mixing fraud crime of loan and fraud crime, the limit between fraud crime of loan and fraud crime of contract; to the status of fraud crime of loan, the author focuses on some difficult and doubtable problems in status of accomplished, unaccomplished, complicity and quantity of crime pattern.In 1997, the new criminal code of China separated fraud crime of loan fromgeneral fraud crime to blow and prevent more effectively the serious behaviors of cheating loan from bank and other financial organizations in field of finance and credit. It is a historical progress and reasonable, this stipulation has assured that the socialist market economy in China can operate smoothly and the effect is undoubted. However, there are many defects in the regulation related to fraud crime of loan in the current criminal code of China, and the regulating should be improved. In the last chapter of this article, the author makes a brief introduction and review of the legislation of fraud crime of loan abroad on comparison of cases of legislation of some countries and regions, such as Germany, Russia, the U.S., France, Switzerland, Italy, Japan, S. Korea and Macao and so on, the author holds that there are many different patterns in legislation of fraud crime of loan abroad, and we can find three clear characteristic in these patterns: firstly, there is a breakthrough of ’schism pattern’ from ’forgive pattern’ regarding to the relationship between legislation of fraud crime of loan and traditional and general fraud crime; secondly, other countries attaches importance to blow credit cheating in legal act; thirdly, measurement of penalty of fraud crime of loan is light generally. Then, the author does some consideration of the legislation pattern of fraud crime of loan: the author explains the positive effect of making separate stipulation related to fraud crime of loan in the criminal code, at same time analyses the characteristics, advantages and disadvantages of the legislation pattern of fraud crime of loan in China, discusses the necessarily of increasing ’ general fraud crime of loan’ of administrative crime in the criminal code in China and putting unit into the scope of principal part of fraud crime of loan and puts forward the concept of increasing ’ general fraud crime of loan’ and ’crime of viciously escaping from credit and debt’. In addition, the author analyses briefly advantages and disadvantages of configuration of penalty of fraud crime of loan in China and the direction of perfecting.更多还原