贷款诈骗罪主体及非法占有目的的认定

贷款诈骗罪主体认定方面有三个疑难问题:一是银行或其他金融机构工作人员能否构成贷款诈骗罪;二是单位贷款诈骗的情况下负有责任的人员能否构成贷款诈骗罪;三是以单位名义实施,实为自然人贷款诈骗情形的认定。有五种情形即为实施犯罪而设立单位或单位设立后以实施犯罪为主要活动,盗用、冒用单位名义实施贷款诈骗,私人合伙企业、私营独资公司实施贷款诈骗,承包、租赁经营者以单位名义实施贷款诈骗。

Determination of the Subject and the Aim of Illegal Possession of the Crime of Defrauding a Financial Institution of Loans

With regard to the determination of the subject of the crime of defrauding a financial institution of loans, the paper discussed three difficult problems. The first one is whether the working staff of banks and other financial institutions can be the subject of the crime. The writer discussed the issue in the following three aspects: privately use or illegally possess fund of financial institutions with the convenience of duty; defraud financial institutions of loans without the convenience of duty; defraud financial institutions of loans by ganging up with others out of the institution. The second one is whether the responsible people can be the subject of the crime under the circumstance of defrauding a financial institution of loans by a unit. The writer thinks that the personnel in charge and other direct responsible personality shouldn't be investigated under criminal responsibility on this crime under the circumstance. The third one is the determination of the case that is executed by a natural person under the name of a unit. The writer discussed the issue in the following five aspects: to create a unit in order to commit crimes or the main business is to commit crimes after the creation of the unit; to commit the crime by misappropriating and assuming the name of a unit; the private partnership enterprise and the private sole corporation defraud a financial institution of loans; the contract and charter proprietors commit the crime under the name of a unit and other circumstances.