Details of a case: In June 2017, wang Mou is in small letter group release information to say to be able to be avoided ask for a letter to deal with a network to borrow money, morrow, song Mou sees Wang Mou deals with a network to borrow money about. Wang Mou handles loan with helping Song Mou for, be in diddle from Song Mou mobile phone and pay treasure the password, risk with its name from " ant borrows " in the disbursement that loan turns 4000 yuan to oneself treasure account is prodigal. That evening, song Mou discovery is cheated, report a case to the security authorities to public security mechanism then, wang Mou is captured.
Different to the qualitative existence of Wang Mou behavior opinion. A kind of opinion thinks, wang Mou's behavior has beguiling sex, can analogy is court of applicable and top people, highest people procuratorate " supervise criminal case about handling obstructive credit card specific application law the explanation of a certain number of problems " (next weighing " explanation " ) the 5th the 2nd the 3rd regulation, with crime of fraud qualitative processing, but because did not achieve crime of fraud " number is larger " (5000 yuan of above) standard, do not constitute crime of fraud. The author thinks, wang Mou's behavior makes theft, specific reason is as follows:
Risk those who use Song Mou to pay treasure account pilfer to brush ant to borrow to Wang Mou whole process undertakes analytic meeting discovering, wang Mou's behavior is by diddle Song Mou pays treasure account password and mobile phone actually -- risk with pay treasure account through borrowing function to ant small borrow a company to borrow money -- ant Xiao borrow a company to extend the loan that Song Mou pays treasure account transfers him account.
In the first behavior, wang Mou is gotten from somewhere of the Song Dynasty through cheating a method mobile phone and pay what Song Mou logins after the password to pay treasure account, obtain pair of Song Mou to pay treasure account to have control power certainly, but this will not pay the belongings inside treasure account to deliver to Song Mou of one's own accord on behalf of Song Mou apparently. In fact, song Mou still can pass other mobile phone to login afresh in any hour pay treasure account, implementation pays treasure the new control of account to its.
In the 2nd behavior, wang Mou is risked below circumstance of Song Mou unwitting pay treasure account with its, use borrow function to ant small borrow company loan. Those who need an attention is, ant is small lending a company is extend loan the pays the and rather than on treasure account Wang Mou account to Song Mou, that is to say, wang Mou did not obtain extending loan directly accordingly. Have to realize what borrow money to this, wang Mou still needs to use Song Mou pay treasure account.
In the 3rd behavior, wang Mou falls in circumstance of Song Mou unwitting, turn through paying treasure Zhang function, pay what the loan inside treasure account transfers him to pay treasure account Song Mou inside. This behavior is in order to concealment, unbeknown method, destroy former belongings to have state, build new property to have state, accord with larceny apparently make important document feature.
In addition, the author thinks, " explain " the 5th the 2nd the 3rd regulation is basis of explanatory main body the explanatory note that need of legislative spirit, judicatory and social policy have to credit card crime of fraud, the instantly that is abolished already explains in analogize, cannot apply in clause of other criminal law.
On put together, wang Mou is risked pay treasure account with Song Mou to ant small the behavior that borrows company loan, it is a kind of action that creates a condition for follow-up theft only, and the control that Song Mou loses pair of property, also be not suffer becloud and hand over property of one's own accord, reason answer to Wang Mou with larceny qualitative processing.
Toward period review
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Origin / net of justice of procuratorial work daily
Examine and verify / luck of Liu of department of administration of Hang Jinqi procuratorate
Editor / Hang Jinqi cloud of media of procuratorate be in harmony is graceful
