Research On Deposit Possession In Property Crime

With the rapid development of modern economy,trading activities have become active.In order to adapt to the change of trading habits,more flexible and convenient trading methods have emerged as the times require.In modern commodity trading activities,possession of property has become a noun which can be separated from all but independently discussed.In particular,new payment methods such as Alipay and WeChat have led to the diversification and complexity of deposit possession.It is not easy to clarify the issue of deposit ownership.Chapter 1: From "legal interest" to "concept".Among the theories of tort crimes in various countries,the most influential ones to our country are the theories of ownership,possession and various intermediate theories with theft as the core;the views of property theory,economic property theory and legal/economic property theory with fraud as the core.The doctrine of ownership and possession mainly comes from Japan,which is the basis of the theoretical research on the crime of property infringement in Japanese criminal law.The doctrine of property in law,economic property and legal/economic property originate from German criminal law theory.The emergence and development of these two theories are inseparable from the legal and social development environment of Japan and Germany.In the past,the disputes on the legal interests of tort crimes in China's criminal law theory have been focused on the internal disputes between the rights theory and the possession theory,the propertytheory of law and the property theory of economy.Nowadays,some scholars begin to put forward the viewpoint of discarding the legal interests of the rights/possession theory,and instead base the protection of legal interests of property crimes on the discourse platform of law/economy.Whether it is based on the discussion path of ownership/possession or on the legal/economic discourse platform,the focus of the debate on the protection of legal interests in property crimes is to expand or narrow the scope of punishment for property crimes.The theory of ownership and the theory of property of law advocate narrowing the scope of punishment for property crimes,the theory of possession and the theory of economic property advocate expanding the scope of punishment for property crimes,while the theory of middle and the theory of economic property of law advocate compromise.On the issue of legal interests of tort crimes,the context of criminal law in China is similar to that in Japan.In such a legislative context,it is not inappropriate to continue to apply the discourse system of the doctrine of ownership/possession.The interpretation of deposit possession should first be based on the understanding of "possession" in the crime of embezzlement.Possession in the crime of embezzlement is not only an implicit element in the constitution of crime,but also a legal interest protected in the crime of embezzlement.There is no contradiction between taking possession as an important element of the crime of embezzlement and possession in the position of legal interests.Many scholars have mistaken the judgment of constitutive crime into the wrong situation of abstract legal interest measurement.It is obviously inappropriate to substitute the judgment path of constitutive crime with the measurement of legal interest.It is undoubtedly from one extreme to the other to deny that possession may become a protected legal interest.The conclusion that possession is not the legal interest of property crime is also untenable.The concept of deposit possession is closely related to the influence of factual and legal elements on possession.In the sense of criminal law,deposits are dividedinto deposit claims and deposit cash.Deposit claims belong to property interests,while deposit cash belongs to property.With the deepening of scholars ‘understanding of the connotation of possession,conceptual possession is gradually accepted,which is reflected in the subtle change of the criteria for determining the state of possession.As far as the criteria for determining the state of possession are concerned,from the initial emphasis on the factual elements of possession to the later emphasis on the normative elements,the situation of emphasizing both the factual elements of possession and the normative elements is finally formed.The concept of purely factual possession describes possession as a kind of factual control,which is often realized through a narrow spatial connection between people and things.Pure normative concept of possession holds that possession in criminal law is not a descriptive concept,but an evaluative one.It reveals not only the fact of possession itself,but also the hidden social relations behind possession and the related normative protection purposes.In the relationship between the two,we should pursue the reconciliation between the factual theory and the normative theory.If there is no possibility of any relationship between the subject and the property in the factual level,or the former relationship has disappeared,it is difficult to say that property can be evaluated as the object of possession according to the legal rules and social concepts.Normative factors are also an indispensable part of occupancy judgment.It is inappropriate to only make normative judgments and ignore factual evaluation.It is incomplete to evaluate occupancy only by factual factors.Therefore,from the time cash is deposited in the bank,the depositor actually loses possession of the deposit,which is formally taken over by the bank,while the depositor retains the deposit creditor's rights based on the relationship between creditor's rights and debts.Depositor's possession of deposit creditor's rights and bank's possession of deposit cash are mutually parallel,independent and not exclusive.The connotation of deposit possession includes two parts: the depositor's possession of deposit creditor's rights and the bank's possession of deposit cash.Chapter 2: The foreign experience of deposit possession and its legislative inspiration.The discussion of deposit possession in domestic academic circles is influenced by the criminal law theory of property crimes from Japan and Germany.Japan's criminal law has strict provisions on the division of property and property interests.Therefore,Japan's criminal law holds that the perpetrators of bank passbook theft and credit card withdrawal should establish the joint crime of theft and fraud.The Criminal Code of Japan stipulates that property interests can be the object of crime,including crime of fraud,robbery,crime of assuming responsibility,blackmail and so on,but the object of crime of theft and embezzlement is limited to property.In addition,because the object of the crime of embezzlement is limited to property,and the transfer of money on ATM by using other people's bank cards only infringes property interests.In order to solve the problem of balanced conviction and sentencing of the perpetrators,the Criminal Code of Japan has added the crime of fraud by using electronic computers.Compared with the special provisions of Japanese criminal law on the object of crime of property infringement,from the general title of Chapter V of our criminal law,"property" in the crime of property infringement refers to public property and private property.In terms of interpretation,"property interests" should be included in this concept,whether in the form of tangible property or in the form of property other than tangible property.Sexual interests should be protected by our criminal law.German criminal law divides the reasons of wrong remittance into two kinds: the wrong remittance caused by the remitter's fault and the wrong accounting caused by the bank's fault.In the past,the mainstream view in Germany was that it was not a crime of fraud for the recipient to withdraw the wrong remittance from the bank window,but if the recipient withdraws the wrong remittance caused by the bank's wrong accounting,the behavior of the recipient constitutes a crime of fraud.Nowadays,German jurisprudence has changed the way of distinguishing erroneous transfers from erroneous accounts,that is,whether due to the fault of the remitter orthe fault of the bank,the act of withdrawing money by the drawer does not constitute a crime.The reason for this change lies in the fact that the relationship between the remitter and the bank,as well as between the remitter and the recipient is independent.Even if there are flaws in the legal relationship,it should not affect the behavior of the recipient in withdrawing money.The behavior of the recipient in withdrawing the wrong remittance only produces the right of claim for the return of unjust enrichment to the remitter.The legislation of traditional crime of embezzlement in Germany mainly focuses on the crimes of theft,fraud and embezzlement.Since the promulgation of the Second Anti-Economic Crime Law,the German Criminal Code has added 263 A "computer fraud" and 266 b "crime of abusing cheques and credit cards" to the original charges,which has changed the legislative pattern of the regulation of crime of embezzlement.Chapter 3: The object of deposit possession.The so-called object of deposit possession refers to the bank's possession of deposit cash on the one hand,and the depositor's Quasi-Possession of deposit creditor's rights on the other hand.In China's criminal legislation,the term "property" appears in the headings of the general and sub-provisions of the criminal law,expressing the protection of property rights more from a macro perspective,while in the sub-provisions of the criminal law,the term is mainly used to express the protection of specific things from a micro perspective.In addition to "property" and "property",the words used to describe the meaning of property in the chapter of crime of infringement of property in China include "capital","material" and "money and property".The term "capital" is a specific subordinate concept of the term "property".The terms "material" and "money" are more commonly used in policy documents.There is no legal or illegal difference between "property" and "property",and there is no narrow distinction between property and property interests.Therefore,in the context of our criminal law,property and property should be synonymous with different expressions.The discussion of the distinction between property and property interests stemsfrom the different provisions of the criminal law of many countries on the relationship between them.Article 235 of the Criminal Code of Japan stipulates that the object of the crime of theft is "the property of others".Paragraph 1 of Article 246 stipulates that the object of the crime of fraud is "property",while Paragraph 2 of Article 246 stipulates that the object of the crime of fraud is "illegal interests in property".According to Article 242 of the German Criminal Code,the object of theft is limited to "movable property" and does not include property interests.In the case of robbery of property and property interests,the German Criminal Law has also enacted different legislation,that is,the act of robbing narrow property is stipulated in Article249 of the German Criminal Code,and the act of robbing property interests is stipulated in Article 255.Obviously,the criminal laws of Japan and Germany make a distinction between property and property interests.In the fifth chapter of the Criminal Law of our country,the term "property" is used in almost all the relevant provisions of the crime of infringement of property,but the term "property interests" is not mentioned.From the point of view of our criminal law system,the concept of property should include property interests.The scope of property protected by criminal law is stipulated in articles 91 and 92 of the general principles of criminal law.The definition of public property and private property in these two articles is more meaningful in political declaration than in norm.Generally,the wrongdoer needs to go through two steps to obtain deposits on other people's creditor's rights certificates.One is to steal,defraud deposit passbooks,bank cards and other creditor's rights certificates,and the other is to apply for deposits from the bank under the guise of a nominal depositor.Scholars have gradually realized that there should be a distinction between the theft of bank cards and the theft of bank cards and the acquisition of deposits in accounts.As for the relationship between deposit certificate and deposit,there are three theories: integration theory,separation theory and intermediate theory.The actor who obtains the deposit certificate does not naturally obtain the controlling right of the deposit.Only byexercising the right of claim to the bank through the deposit certificate,can the holder of the deposit certificate realize the deposit claim and possess the deposit.Deposit creditor's rights may not be realized.This process needs to be checked by the bank.The nominal depositor may cancel the certificate or withdraw the deposit in advance before the actor withdraws the money.The viewpoint of the integration of deposit certificate and deposit neglects an important detail,that is,the obtainment of creditor's rights by the actor does not mean that the original depositor loses his deposit creditor's rights.Obviously,the original depositor can also take remedial measures such as loss of bank card or withdraw deposits from the bank by means of identity documents to realize the deposit creditor's rights.Even if the nominal depositor loses the certificate of deposit,it only loses the certificate of creditor's rights with the function of proof,which does not mean that he loses the possession of the property on account at the same time.There is no concept of Quasi-Possession in the theory of criminal law.Generally speaking,the protection of possession refers to the protection of real property.However,under the situation that more and more property interests need to be protected by legislation,scholars try to explain the protection of deposit creditor's rights in the way of expanding the object of possession protection.There are two problems in this way.First,in dealing with the problem of deposit possession,it is often difficult to distinguish the terms of possession of deposit cash or deposit creditor's rights,and it is easy to cause confusion in concepts.Second,the traditional theory of criminal law holds that the object of possession is limited to tangible things,and it is suspected that it includes possession of property and property interests by analogy.Introducing the concept of Quasi-Possession of rights in civil law into criminal law can more accurately express the relationship between the nominal depositor(holder of creditor's rights witness)and property rights,so as to better solve the judicial practice problems involving deposit property.At the same time,the appearance of Quasi-Possession of deposit creditor's rights makes it possible toconstruct the model of "crime of embezzlement of property with creditor's rights as the object" in the theory of interpretation.Chapter 4: The ontology of deposit possession.Deposit includes deposit creditor's rights and deposit cash.Correspondingly,the ownership of deposit possession should be discussed separately between deposit creditor's rights and deposit cash.There have always been disputes about the ownership theory of deposit cash possession,such as the theory of depositor's possession,the theory of bank's possession or the theory of depositor's and bank's joint possession.Property possession should be formed by both normative and factual factors.Pure conceptual possession without factual basis does not exist.Therefore,depositors cannot become appropriate cash holders of deposits.However,while affirming the bank's possession of deposit cash,only denying the depositor's possession of deposit cash,the possible contradiction is that the depositor's withdrawal and transfer from the bank constitutes the crime of fraud or theft which destroys the bank's possession due to the lack of legal rights.On the contrary,the affirmation of the Quasi-Possession of depositor's creditor's rights makes the depositor have the right to dispose of deposits.As long as the depositor holds the deposit certificate and enters the password,the depositor can pass the verification and verification of the bank.Therefore,the reasonable attribution path should be,whether in fact or in law,the depositors possess the creditor's rights,while the cash directed by the creditor's rights is occupied by the bank.The criterion of whether a deposit voucher holder obtains the deposit creditor's rights is whether the exclusive possession of the controlling power over the deposit creditor's rights.Picking up other people's bank cards does not mean acquiring Quasi-Possession of deposit claims on bank card accounts,because the original depositors can block the possibility of bank card holders to obtain deposits by means of loss reporting,cancellation and withdrawal of deposits in advance.It cannot be considered that Quasi-Possession of deposit claims has been achieved while holding cards.Only when the holder of the bank card pretends to be the owner of the card andwithdraws the deposit from the bank,the original depositor completely loses the creditor's right of deposit on the card,and the holder of the card can truly acquire the Quasi-Possession of the creditor's right.The rule of "possession of money is ownership" in the perspective of criminal law should be negated.In the field of civil law adjustment,the possession of money,that is,ownership,is a basic principle of economic transactions.Once the actor obtains the possession of money,regardless of whether the way of acquisition is legal or not,the actor's ownership of money is recognized.As for the protection of deposits,the criminal law seems to focus more on the ownership and protection of deposit possession,while the civil law focuses more on the relationship between ownership and possession.In other words,the civil law pays more attention to the circulation and substitutability of money as a means of payment,thus paying attention to the protection of dynamic transaction security,but the criminal law pays attention to the protection of the legal order of property and static security.The depositor deposits cash in the bank,so the depositor's creditor's rights make the depositor continue to be the real owner of the deposit,which is not in conflict with the conclusion of protecting the bank's possession of the deposit cash in criminal law,and is in accordance with and corroborated with the bank's possession of the depositor's creditor's rights mentioned above.The same deposit has dual ownership of deposit creditor's rights and deposit cash.The possession of deposit cash belongs to the bank,and the Quasi-Possession of deposit creditor's rights belongs to the nominal depositor.Both of them are legal interests of deposits protected by criminal law.Depositor possession theory holds that the depositor can freely control the funds in the account,so it is unreasonable to affirm that the depositor has possession of the funds in the account.Depositors‘control over deposits is not absolutely free,but subject to various restrictions from banks.In fact,banks also directly dispose of depositors ‘funds deposited in bank accounts,such as assisting judicial organs to inquire,freeze or deduct depositors' bankaccounts,which fully illustrates that it is not realistic to compare banks to "safe".Therefore,there is a significant difference between the high possibility of bank and deposit liquidation in the term of "safe".The former describes a certain state of fact,which does not depend on any third party.The object of the former is concrete things,while the latter is an incomplete conjecture of future facts,and the object of the latter is debt essentially of legal relationship.Banks are not assistants to the possession of deposits,that is,banks do not exist only as tools for depositors to possess deposits.Banks actually control and control deposits,and banks have such control and control to fight against unqualified card-holders.The view that banks and depositors possess deposit cash at the same time is contradictory.In fact,after the bank absorbs the depositor's funds into the deposit,the bank does not need to make any report to the depositor to use the depositor's deposit reasonably.If we insist that the depositor is also the holder of funds,it means that every transaction made by the bank as the joint holder of funds must be examined and approved by the holder of funds(depositor),which is not in line with the practical transaction procedures of the bank.The nominal depositor withdraws the deposit from the bank's account in advance with the consent or acquiescence of the bank.The nominal depositor only has the deposit creditor's rights to the bank based on the relationship between creditor's rights and debts,but does not possess the deposit cash.Quasi-possession and possession coexist in deposits.In criminal cases involving deposits,deposit possession is not static,it is always in a dynamic state of circulation.On the one hand,the depositor deposits the cash in the bank,from which the bank obtains the factual possession of the deposited cash physically;on the other hand,after the depositor deposits the cash in the bank,the creditor's rights attributable to the depositor will be quasi-possessed between the depositor and the bank based on the deposit contract.The criterion for judging whether a deposit voucher holder obtains the deposit claim is whether the exclusive possession of the deposit claim is dominant.In the same deposit,there are two different legal interests between the bank and thenominal depositor.There is no difference in validity between Quasi-Possession of property rights and possession of real things.They coexist on deposits.Quasi-possession of real things does not exclude Quasi-Possession of rights,and vice versa.Since the Quasi-Possession of deposit creditor's rights and the possession of deposit cash are not mutually exclusive,they should also be protected by criminal law when they exist at the same time.It is unreasonable to put the focus of attention on either side and neglect the other side when characterizing behavior.At the same time,we can't think of the joint possession between the Quasi-Possession of deposit creditor's rights and the possession of deposit cash,because they are totally inconsistent with the property of joint possession.It is preferable for them to be Quasi-Possession of the establishment of deposit creditor's rights and possession of the establishment of deposit cash,which exist independently.When both of them are infringed at the same time,they can be dealt with by imaginary coincidence.In theory,on the one hand,the principle of the unity of legal order is regarded as the natural premise of legal hermeneutics,on the other hand,it emphasizes the independence of criminal law,and the application criteria and rules of criminal law to be separated from other departmental laws are ambiguous.On this issue,there are two viewpoints in the theoretical circle of criminal law: the theory of independence of criminal law and the theory of subordination of criminal law.Compared with civil law,criminal unlawfulness must be a kind of unlawful act which has a higher content of quantity and a higher connotation of guilt and responsibility.It must use penalty means with social ethics and be harmful to the order of social common life.Civil law norms focus relatively on the result of worthless,that is,in the provisions of civil torts,the scope and amount of damages do not take into account the subjective factors such as the intent,negligence,purpose and motivation of the offender,that is,the scope and amount of damages do not differ in principle because of the intent and negligence of the offender.Therefore,there are differences in the protection of legal interests,the basis of illegality and the legal liability between the criminal law and the civil law.Itis difficult to say that the judgment of deposit possession forms the unification of criminal and civil law.Chapter 5: The explanatory function of deposit possession in the crime of embezzlement.There are several types of cases of reporting loss and taking deposits from other people in one's own account,including direct lending of bank cards to others,then reporting loss of original cards and withdrawing deposits;lending identity cards to others for bank cards and using them by others,and then reporting loss of original cards and withdrawing deposits.Not all withdrawals without justified reasons are premised on deceiving the bank.There is no deception to the bank in the act of reporting the loss and withdrawing the money from other people's accounts.In the case of reporting loss and withdrawing deposits from other people's accounts,the withdrawer can provide the bank with the same identity certificate as the depositor.The bank accepts the deposit without mistake in determining the identity of the withdrawer.The loss and withdrawal are legal transactions and cannot be considered cheated in any case.This is the so-called "real person holding real card" situation.As far as the Quasi-Possession of deposit claims is concerned,before the owner of the bank card reports the loss and withdraws money,he does not think that he has obtained the Quasi-Possession of deposit claims exclusively,because the actual holder of the bank card can withdraw the deposit at any time,thus excluding the possibility that the owner of the bank card can illegally obtain bank deposits.It is difficult to hold the view that once deposits are entered into accounts,the Quasi-Possession of deposit creditor's rights can be obtained immediately.There are two main cases of mistaken remittance: one is the case of mistaken remittance caused by the disoperation of the remitter,the other is the case of mistaken remittance caused by the disoperation of the bank.In a common case of wrong remittance,at least four parties are involved,namely,the remitter,the remitting bank,the recipient and the receiving bank.Any mistakes made by the remitter,the remitting bank or the receiving bank in any link of the process of transfer and remittance maylead to wrong remittance.The deposit cash of wrong remittance belongs to the bank,and the deposit creditor's right of wrong remittance belongs to the deposit nominal person(it is still necessary to judge the quasi-owner of deposit creditor's right).If the drawer does not enjoy the creditor's right of incorrect remittance into the deposit,the act of withdrawing or transferring money may constitute theft because it secretly infringes the creditor's right of other people's deposit,but if it is considered that the drawer has Quasi-Possession of the creditor's right of deposit before withdrawing money,the drawer's act constitutes embezzlement of other people's property.When the drawer makes a claim to the bank,and the bank fulfills the debt,the drawer occupies the other person's creditor's rights exclusively.It is not possible to deny that the act of obtaining wrong remittance constitutes a property crime on the ground that an act belongs to unjust enrichment in civil law.Unjust enrichment in civil law may also constitute crimes of embezzlement,theft and fraud in criminal law.As for the case of taking the wrong remittance from others,whether it is dealt with as a civil dispute or as a property crime against the infringer,we should consider the extent of the infringement of the legal interests of the acts comprehensively,and regulate the acts of reaching a serious degree of harm by property crime.The difference between the act of picking up bank cards and withdrawing money and the act of "reporting loss and withdrawing deposits of others in one's own account" discussed in the first section of this chapter and the act of "taking away erroneous remittances" discussed in the second section of this chapter is that in the latter two cases,the actor always uses his own bank card,and there is no case of "pretending to be others" or "using false cards" to withdraw money from the bank.The Bank Card Consolidation and withdrawal use other people's bank cards and withdraw other people's deposits,so there may be a problem of cheating the bank to withdraw money.ATM is only a machine that knows only cards but not people.It does not produce any perceptual judgment.It is different from a conscious bank teller and does not have the ability to identify the withdrawing entity.Although the collectorpretends to be the owner of the bank card,the machine does not have the space to fall into the wrong recognition.In the case of infringement of deposit interests,there are cash possession of banks and creditor's rights possession of depositors in every deposit,which are coexistent relations for deposits.The bank actually holds the deposit cash,enjoys the right to control the funds,and at the same time,it can freely control the use and direction of the funds.From the point of view of the bank's control over cash,if the third party deceives the bank and transfers the money,the illegal acquisition of funds by the third party not only infringes the property and legal interests of the holder of the bank card,but also infringes the economic interests of the bank on deposit.The so-called triangular fraud has its own particularity different from ordinary fraud,that is,the object of triangular fraud should be "other people's property".If the fraudulent party only disposes of its own property,it should be considered to be punished as ordinary fraud.Therefore,the act of picking up bank cards and cheating the bank to withdraw deposits by the drawer is not a "triangle fraud" to the bank.The legal relationship subjects that need to be considered in determining the transfer of funds from other third-party payment accounts are third-party payment platforms,banks,payees and payers.If the payer wants to make payment to the payee through the third-party payment platform,the deposit in the bank card must be transferred to the account opened by the payee in the third-party payment platform through two-dimensional code scanning.There is no essential difference between third-party payment platform and bank payment platform.Credit cards in criminal law include all electronic payment cards with functions of credit loan,consumption payment,cash withdrawal,transfer and settlement.The functions of these electronic payment cards are embodied on the third party payment platform.The third-party payment platform actually holds the cash in the third-party payment account,and the user of the payment account enjoys Quasi-Possession of the deposit creditor's rights of the payment platform,and its creditor's rights are reflected by the recorded data inthe account.The illegal acquisition of the third party payment password and the use of it are similar to the withdrawal of deposits from other people's bank accounts on ATMs.There is no crime of fraud against the third party payment platform.Scholars believe that the contradiction between theft and fraud does not exist in the case of embezzlement of deposits,nor does it apply in judging the nature of the infringement of third-party payment account funds.Because the infringement on deposits is different from general property.Deposit has the particularity of separating cash from creditor's rights.The infringement on deposit constitutes infringement on two legal interests at the same time,that is,the Quasi-Possession of depositor's creditor's rights and the cash possession of bank's deposit,which need to be judged separately in two constituent elements,while the infringement on general property often only infringes on one of the constituent elements.That is to say,the perpetrator may be subjectively excluded from the crime of theft and fraud in a criminal constitution,but this problem does not exist in the two constituent elements,and there are no obstacles in identifying the fraudulent bank and the stolen deposit creditor.