摘要
骗取贷款罪与贷款诈骗罪的区别在于前者不具有"非法占有目的"。刑法理论中对"非法占有目的"的理解从"排除意思"和"利用意思"出发,但在货币领域,由于"占有即所有"规则,"排除意思"被轻易认定,不当扩大了贷款诈骗罪调整。从立法目的上看,骗取贷款罪是将民事领域的严重欺骗行为纳入刑事范畴,而非"诈骗罪"的特别罪名。因此,应当将"非法占有目的"理解为贷款时即不具有偿还的意思的情形。
The difference between the crimes of cheating loan and loan fraud is the purpose of illegal possession from the latter. The purpose of illegal possession in the theory of criminal law is the meaning of exclusion and use. However,in the field of currency,due to the law that possession confers the entitlement attached thereto,the meaning of exclusion is easily defined and the scale of the crime of loan fraud is enlarged. From the purpose of the legislation,the crime of cheating loan includes the serious cheating into the criminal law instead of the specific fraud crimes. Therefore,the condition that possession confers the entitlement attached thereto should be understood as the lenders do not mean to return the loans when they apply for them.
出处
《昆明学院学报》
2016年第2期74-79,共6页
Journal of Kunming University
关键词
骗取贷款罪
贷款诈骗罪
刑民差异
风险社会
crime of cheating loan
crime of loan fraud
difference between criminal law and civil law
risk society
