论利用“真房假证”借款行为的定性

发布时间：2018-06-30 19:00

本文选题：真房假证 + 民事欺诈　；参考：《湘潭大学》2017年硕士论文

【摘要】：伴随着房产成为我国家庭财富中重要的组成部分,围绕着房产产生的市场交易以及以房产作为担保进行的各类交易也成为了促使市场经济发展的重要组成部分。在房地产业迅速发展的过程中,存在着以假房产证作为担保骗取他人贷款的行为,这些行为不但冲撞了社会正常的管理秩序,损害了他人的财产权益,更是触犯到刑事的底线。利用“真房假证”获取借款的行为是指行为人作为房屋的所有权人,却使用伪造的房产证向他人借款的行为。在司法实践中,目前对利用“真房假证”获取借款行为定性主要有以下四种观点:“无罪说”、“伪造、买卖国家机关证件罪说”、“诈骗罪说”和“合同诈骗罪说”。“无罪说”认为利用伪造的房产证借款的行为人是该房产的所有权人,其非法占有目的并不是很明显,而且根据刑法的谦抑性,该行为可用民法规制,不构成犯罪。“伪造、买卖国家机关证件罪说”认为行为人利用“真房假证”获取借款不构成诈骗罪,但行为人伪造房产证的行为破坏了不动产登记管理机构正常管理秩序,构成伪造、买卖国家机关证件罪。“诈骗罪说”认为利用“真房假证”获取借款的行为存在着非法占有目的,并且符合诈骗罪的构成要件。“合同诈骗罪说”认为利用“真房假证”获取借款行为是在履行合同的进程中发生,也符合合同诈骗罪的构成要件。上述四种学说均从不同的角度出发,对利用“真房假证”获取借款行为进行了定性,有其合理之处,但也存在一些不足。为更好的对利用“真房假证”获取借款的行为进行定性,一些理论问题还需要澄清,如合同诈骗罪中“合同”的界定以及“非法占有目的”的界定等。对于利用“真房假证”获取借款行为的定性首先需要分析其是否有非法占有他人财物的目的,如果行为人没有非法占有他人财产的目的,那么其伪造、买卖房产证的行为能够被认定为伪造、买卖国家机关证件罪。若行为人有非法占有目的,则要分析行为人利用“真房假证”向他人借款的行为与行为人买卖、伪造房产证的行为是否是手段行为与目的行为的关系。如若构成了手段行为与目的行为的关系,则在牵连犯的范畴之内,应当选择一个重罪进行处罚,反之,则应当数罪并罚。
[Abstract]:With the property becoming an important part of the family wealth, the market transactions around the real estate and all kinds of transactions guaranteed by the real estate have become an important part of promoting the development of the market economy. In the process of rapid development of real estate industry, there exists the behavior of using false property certificate as guarantee to obtain loans from others. These behaviors not only collide with the normal management order of the society, damage the property rights and interests of others, but also violate the bottom line of criminal law. The act of obtaining loans by using "real house false certificate" refers to the behavior of the actor acting as the owner of the house, but using the forged property certificate to borrow money from others. In judicial practice, at present, there are four kinds of views on the characterization of borrowing behavior by using "false proof of real house": "the theory of innocence", "crime of forgery, purchase and sale of documents of state organs", "crime of fraud" and "crime of contract fraud". "the theory of innocence" holds that the person who borrows money by using forged property certificate is the owner of the property, and its illegal possession purpose is not very obvious. Moreover, according to the modesty of criminal law, the act can be regulated by civil law and does not constitute a crime. The crime of "forgery, purchase and sale of state organs' certificates" holds that it is not a crime of fraud for the perpetrator to obtain a loan by using the "false certificate of real house", but the act of forgery of the certificate of house property by the actor has destroyed the normal management order of the registration administration organ of the real estate, and constituted a forgery. The crime of buying and selling documents of state organs. "Crime of fraud" holds that the act of obtaining loans by using "false proof of real house" has the purpose of illegal possession and conforms to the constitutive requirements of the crime of fraud. The theory of "the crime of contract fraud" holds that the behavior of obtaining loans by using "false proof of real house" is occurring in the process of performing the contract, and it is also in line with the constitutive requirements of the crime of contract fraud. From different angles, the above four theories qualitatively make use of "real house false certificate" to obtain loan behavior, which is reasonable, but it also has some shortcomings. In order to make a better qualitative analysis of the behavior of obtaining loans by using "false proof of real house", some theoretical problems need to be clarified, such as the definition of "contract" in the crime of contract fraud and the definition of "purpose of illegal possession". For the qualitative analysis of the use of "real house false certificate" to obtain loans, first of all, it needs to analyze whether it has the purpose of illegally possessing other people's property, and if the perpetrator has no purpose of illegally possessing other people's property, then he forges it. The act of buying and selling property certificates can be recognized as forgery and trading in state documents. If the perpetrator has the purpose of illegal possession, it is necessary to analyze the relationship between the act of the actor using the false certificate of real house to borrow money from others and the purchase and sale of the actor, and whether the act of forgery of the property certificate is the relation between the act of means and the act of purpose. If it constitutes the relationship between the act of means and the act of purpose, a felony should be punished in the category of implicated crime, and on the contrary, it should be punished in combination with a number of crimes.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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