Deposit Controlling Relations Having Influence On Conviction

In the judicial practice,many cases that deposit is for criminal object exist disputeabout crime and non-crime,this crime and those crime.The phenomenon of thedissimilarity verdict in the same kind case is so much.Deposit controlling relations isso blurry that tremendous dispute is caused,because possession state of propertybefore behavior is the key to distinguish transfer possession and no transferpossession property crimes.The author endeavors to analysis deposit controllingrelations,to study difficult problems in the judicial practice and define the limitsincluding crime and non-crime,this crime and those crime.This paper is divided into four chapters excluding Introduction.The first chapter raises a question.There are many arguments about depositcontrolling relations in current criminal law field of vision.And clarification of theserelations certainly will have influence on criminal qualitative analysis.In the judicialpractice,many cases that deposit is for criminal object exist unjust enrichment,crimeof embezzlement,larceny,crime of fraud and so on.Behind qualitative dispute,there aregreat dispute about deposit controlling relations.For example,in the HePeng’scase,supporters of crime of embezzlement think that deposit is in the possession ofHePeng,but supporters of larceny don’t think so.Deposit controlling relations is soimportant,because it is the key to distinguish transfer possession and no transferpossession deposit crimes.In addition,the author also points out that the particularity of the deposit control relations is subject of possession,transfer of possession,belongings of possession,etc.The second chapter analysis the behavior which people take money from hisaccount,in the situation such as mistake of remittance,input the wrongamount,machine problem and so on.To analysis errors remittance cases in Japan,theauthor thinks that it should not be crime of fraud due to restrict on withdrawalauthority and violation of duty of disclosure.The key is to determine the standard ofdeposit possession.On the basis of possession in fact,we must judge deposit creditor’srights.Whether it is error remittance,or the bank staff input the wrong amount,ormachine problem situation,it should be sure the existence of the deposits creditor’srights.According to above analysis,HePeng should constitute crime of embezzlement.The third chapter analysis the behavior which to get deposit from others’forgotten Bank card in the operation at an ATM.In this part,the author lists two casesand analysis that conviction as Larceny or credit card fraud for such cases iswrong.The author thinks that getting deposit from others’ forgotten Bank card in theoperation at an ATM constitutes crime of embezzlement.The money in the card shouldbe forgotten things in the sense of criminal law.According to the theory of doublecontrolling relations,ATM belongs to the public occasions,its dominant force isweakened and it has no clear meaning of possession,so it can’t be the secondpossessor.And the pepole who actually hold Bank card is not equal to the possessionof deposit in fact, the person also can’t become the new possessor.The fourth chapter wil discuss the situation that account holder reports the loss ofothers’ deposit and collects it.The particularity of deposit controlling relations isoverlap and conflict of possession,it displays as:When actual cardholder save moneyto the Bank,the Bank will have actual possession and ownership of the money.Whencurrency possession transfer to the Bank,actual cardholder have possession in fact byright of ostensible title.When the Bank card is lost by actual cardholder or swallowedby an ATM, account holder will have legal possession of the deposit.In the overlap ofpossessive state,belongings of possession shall consider the controlling power, it isdivided into two kinds of situations:On the one hand,when actual cardholder still hold on a Bank card and password,account holder don’t have the possession of deposit.Theactual card holder’s controlling power is stronger than the Bank’s.On the otherhand,when actual cardholder have lost the Bank card and password,his possession hasalready disappeared,at this moment,account holder’s controlling power is strongerthan the Bank’s.In the first occasion,it can eliminate crime of embezzlement,but todistinguish larceny and crime of fraud still need to distinguish cheat and secretmeans.In the second occasion,it should be established crime of embezzlement,but theunderstanding of “property custody” should not distinguish trust relationship.