“雙重詐騙”案件的定性與處罰－－以欺騙不動產擔保後騙取銀行貸款為例

Discussion on the Execution Option of Secured Creditors

“雙重詐騙”，是指行為人通過第一個行為騙取財物以後，以騙得的財物為工具，實施第二個欺騙行為。“雙重詐騙”中前後兩個欺騙行為均成立詐騙犯罪。以行為人欺騙他人不動產擔保後騙取銀行貸款的案件為例，前行為針對財產性利益進行詐騙，給擔保人造成了財產損失，成立（合同）詐騙罪；後行為也屬於詐騙行為並且給銀行造成了貸款損失，成立貸款詐騙罪。“雙重詐騙”中的前後兩罪並不屬於刑法理論上的想像競合犯、連續犯，後行為更不是事後不可罰的行為；對兩罪實行數罪並罰，會導致刑罰畸重，並不妥當。事實上，前後兩個詐騙行為之間具有手段與目的的牽連關係，應以牽連犯論處，從一重罪處罰。

Double-Fraud' refers to the phenomena where the perpetrator who had defrauded property by the first act, commits the second fraud with the property defrauded previously. Both the former and latter acts in 'Double-Fraud' constitute crime of fraud. For instance, when the perpetrator had firstly swindled real estate guaranty and then swindled loans from the bank, the first act constitutes the crime of (contract) fraud because it swindled the property interests and caused losses in property to the guarantor; the second act constitutes the crime of loan fraud because it also belongs to the act of fraud and caused losses in loans to the bank. It should be contended that these two offenses do not fall into the categories of imaginative concurrent offenses, successive offenses. The latter act cannot be deemed as unpunishable behavior afterwards. But if these two crimes be punished jointly, it will lead to abnormal heavy punishment, so it is inappropriate. In fact, in the case of 'Double-Fraud', the perpetrator aims to swindle loans from the bank and to swindle the real estate guaranty from the victim is just the means of the objective behavior. There is implicated relationship between the means and the purpose, so the 'Double-Fraud' should be punished as implicated offenses according to the felony punishment.