I saw this message on the campus QQ group tonight:
Today, on March 5th, a classmate of our school ** forgot to take out the card after withdrawing money at the China Construction Bank ATM at the headquarters of Foshan University. Contact the bank card person (13695249899) to return the money, and promise not to pursue legal responsibility and keep it confidential. Otherwise, if it is not returned within a week, it will be handled by the police. You will be responsible for the legal responsibility. Don’t leave a criminal record to affect your future! Please help Chuan Chuan, thank you!
It is not uncommon for the balance to be taken away due to failure to withdraw the card after the ATM operation, and some people even wait for others to forget the card. ¹Of course, if the above information is true, I believe that based on years of experience in the university, the “person” who withdraws the money later should have done it on a temporary basis. After all, the school is a relatively closed place. Behaviors such as “spotting” to withdraw money are obviously not in line with the criminal psychology of this type of crime. Most of them will choose a place with a lot of people. At least a lot of people means a higher chance of forgetting to pull out the card.
Although the behavior of taking money while the owner is negligent seems very simple, even pure, but there are great differences in the characterization of this behavior in the academic circles. There are two main points of view:
1. Anyone who withdraws money from an ATM without asking the source of the card should be considered the crime of theft; 2. The act of picking up another person’s credit card and using it on an automatic teller machine (ATM) falls under the circumstance of “fraudulently using another person’s credit card” as stipulated in Item (3) of Paragraph 1 of Article 196 of the Criminal Law, which constitutes a crime. Pursue criminal responsibility for credit card fraud.
The first point of view is represented by Professor Zhang Mingkai of Tsinghua University:
In such cases, we cannot simply understand the provisions of Article 196 of the Criminal Law, and we should not only look at the fraudulent use of other people’s credit cards or the use of counterfeit credit cards, but should combine the elements of “conducting credit card fraud activities” in this article, that is, It must be that the victim has a misunderstanding and disposes of property based on the misunderstanding, otherwise it cannot be called “cheating”. Assuming that the criminal law does not stipulate the crime of fraud, fraud is the indirect principal offender of theft. Therefore, the crime of fraud must be to deceive a natural person, and it is impossible for an ATM to be deceived. There is no dispute about this in countries with civil law systems or countries with common law systems. For example, both Germany and Japan stipulate the crime of “using computer fraud”, which essentially refers to theft of property interests. The perpetrator hacked into the computer terminal of the bank’s computer, transferred the victim’s bank deposits into his own passbook, and did not withdraw the money. In our country, it must be convicted of theft, but in Germany and Japan, the crime of theft cannot be convicted, because the two In China, the crime of theft is limited to property, and only fraud includes property interests. Why can’t the object of the crime of theft be expanded to property interests? Because there is no starting point for their property crimes, if property interests are used as the object of the theft crime, it will cause confusion. For example, staying in someone’s air-conditioned room without authorization for two minutes may constitute the crime of theft. Lecture attendance may also constitute the crime of theft. Moreover, “the crime of using computers to defraud” is not a crime of fraud, because it is impossible for the cash machine to be deceived, and it is impossible for the cash machine to make a mistake. As long as it complies with the withdrawal procedure and enters the correct password, the cash machine will operate as usual regardless of whether the cash drawer is the cardholder or not. Work.
It believes that the reason why credit card fraud is convicted separately is because it has the meaning of “fraud”. If there is no “fraud” behavior, it should be positioned as the crime of theft. We can also simply understand Professor Zhang’s point of view: put money in the announcement safe—open the safe—unlock it—the balance is taken away by others—“others” constitute the crime of theft. As for the ATM, it doesn’t matter what kind of thing it is.
The key difference between the crime of theft and the crime of fraud is that the crime of theft violates the will of the victim, while the crime of fraud involves the voluntary disposal of property by the victim based on flawed knowledge. As far as this type of case is concerned, since the perpetrator withdraws money from the ATM against the will of the victim, any perpetrator who withdraws money from the ATM without asking the source of the card should be deemed the crime of theft. If you withdraw money on the counter, you need to distinguish between two situations. If you withdraw money on the counter after stealing a credit card, it is the crime of theft; Fraud, because at this time the bank staff had a misunderstanding, thinking that the fraudulent user was the cardholder. There are two points to note here: first, picking up credit cards is an inconsequential act, because picking up without other actions cannot be convicted; second, the damage to property does not lie in picking up, stealing or snatching credit cards, but in how they are used credit card. For example, if the actor picks up the credit card and withdraws 5,000 yuan from the ATM, and then withdraws 5,000 yuan from the counter, it should be determined that the actor has committed the crime of theft and credit card fraud. crime. If the perpetrator withdraws money directly from an ATM while others forget to take out the card, he should be charged with theft, not embezzlement. Because as long as the money is not taken out, it cannot be regarded as a forgotten thing, because it is in the possession of the bank at this time, and embezzlement is the act of taking the property that one owns as his own; even if he picks up other people’s credit cards, the perpetrator only possesses the credit card itself , not the amount on the credit card.
the difference is:
Reply of the Supreme People’s Procuratorate on how to characterize the behavior of picking up someone else’s credit card and using it on an automatic teller machine (ATM)
(Adopted at the 92nd Meeting of the Tenth Procuratorial Committee of the Supreme People’s Procuratorate on February 19, 2008)
Zhejiang Provincial People’s Procuratorate:
Your hospital’s “Request for Instructions on How to Qualify the Behavior of Picking up Other People’s Credit Cards and Using It on ATMs” (Zhejianyan [2007] No. 227) has been received. After research, the approval is as follows:
The act of picking up another person’s credit card and using it on an automatic teller machine (ATM) falls under the circumstance of “fraudulently using another person’s credit card” as stipulated in Item (3) of Paragraph 1 of Article 196 of the Criminal Law, which constitutes a crime and shall be charged with the credit card. Criminal responsibility for fraud.
Announcement of the Supreme People’s Procuratorate of the People’s Republic of China
“Reply of the Supreme People’s Procuratorate on How to Qualify the Behavior of Picking Up Others’ Credit Cards and Using It on Automatic Teller Machines (ATMs)” was passed by the 92nd Meeting of the Tenth Procuratorial Committee of the Supreme People’s Procuratorate on February 19, 2008 , is hereby promulgated and shall come into force on May 7, 2008.
Supreme People’s Procuratorate
April 18, 2008
Therefore, in reality, almost all cases of this kind are sentenced without exception to “crime of credit card fraud”.
The crime of credit card fraud (Article 196 of the Criminal Law) refers to the act of defrauding large amounts of property by using credit cards for the purpose of illegal possession, in violation of credit card management regulations. ²
We might as well analyze whether the crime of credit card fraud is constituted from the traditional theory of crime constitution:
object of crime: This behavior has violated the public and private property ownership of the relevant parties of the bank and credit card and the country’s credit card management system;
From the perspective of the criminal object (the social relationship protected by the criminal law violated by the suspect), the crime of credit card fraud focuses more on the protection of the credit card management system. (But it is true that it is difficult to understand how it jeopardizes the credit card management system in the case of forgetting to take out the card and being withdrawn by someone.)
objective elements of crime: Fraudulently using someone else’s credit card to withdraw money, knowing that the credit card is not your own, but still continuing to conduct transactions with the ATM machine, this is a typical fraudulent use, anyway, except for obtaining the consent of the cardholder, it is all fraudulent use.
subjective aspect: Intention to illegally occupy other people’s property.
The crime of theft (Article 264 of the Criminal Law) refers to the act of secretly stealing a relatively large amount of public and private property for the purpose of illegal possession, or secretly stealing public and private property several times.
From the point of view of the crime of theft, the object of the violation is the ownership of public and private property, which objectively shows the behavior of secretly stealing public and private property (no one voluntarily surrenders property based on being deceived, and ATM, which cannot be used as a tool for being deceived, is not available. “Person”), and subjectively and intentionally illegally occupy other people’s property.
Therefore, this very simple act can be evaluated in two different ways in the field of criminal law.
Personally, I think both conclusions are very convincing, and it is reasonable for academic circles and judicial practice to adopt one method each. The theory of “theft” adopted by the academic circle is more in line with the objective reality and the development direction of the criminal law, while the “credit card fraud” adopted in judicial practice is more based on the “Criminal Law” itself and according to the actual social situation (the starting point of the crime of theft) is too low, and there are many occurrences of such events that are not particularly harmful).
¹ The man waited for others to forget to withdraw the card by the ATM machine and stole 21,400 yuan 4 times ² http://www.hicourt.gov.cn/xingsh/xingsh_list.asp?id=91