骗领不动产登记后抵押贷款行为的刑法定性——以杨某、韦某、何某诈骗案为切入

The Criminal Law Characterization of Fraudulent Real Estate Registration Followed by Mortgage Loan—Taking the Case of Yang, Wei and He Fraud as an Entry

摘要: 骗领不动产登记后抵押贷款的行为类似于既有的无权处分不动产行为，却又存在不同，无法直接通过现有理论解决定性问题。该行为的侵害对象仅包括原权利人对物享有的第三人设定抵押权而优先受偿的权益。理论及司法实务界对该行为的刑法定性，主要集中于诈骗罪说和盗窃罪说两种解决路径。一般诈骗罪说的解释路径与本案被害人及财产损失、行为本质等要素内涵不一致；传统三角诈骗罪说无法合理解释不动产登记机构具有处分地位；新型三角诈骗罪说无法满足财产处分与财产损失的素材同一性要求。而基于重叠占有理论，对该物上的抵押权的占有，由被害人的物上转移到了第三人上，构成财产性利益的盗窃，完全合致于盗窃罪的规范构造。

Abstract: The act of fraudulently obtaining a mortgage after real estate registration is similar to the established act of disposing of real estate without right, yet there are differences that cannot be directly resolved by the existing theory of characterization. The object of this act includes only the rights of the original right holder to the object of the third party to create a mortgage and the priority of payment. The theoretical and judicial practices on the criminal law characterization of this behavior, mainly focus on the two so-lution paths: fraud and theft. The interpretation path of general fraud theory is inconsistent with the connotation of the victim and property loss and the essence of the act; the traditional triangle fraud theory cannot reasonably explain that the real estate registration institution has the status of disposition; the new triangle fraud theory cannot meet the requirement of the same material of property disposition and property loss. And based on the theory of overlapping possession, the possession of the mortgage on the object, which was transferred from the object of the victim to the third person, constitutes theft of property interest and is fully consistent with the normative con-struction of the crime of theft.