Study On The Act Of Nominee Withdraw Other’s Deposit By Reporting The Loss

The act of nominee withdraw other’s deposit by reporting the loss refers to that atthe moment of the real depositors opening deposit accounts or using depositcertificates in the name of others, the nominee withdraw other’s money in largenumber by reporting the loss of deposit certificates which controlled by real depositor.The character of the act manifested in following aspects that is special nature of thesubject, report the loss of the established, withdraws after onset. According to thesubjective content by the different perpetrator, can make the act divided into two typeswhich is the prior of premeditation and the spur of the moment. According to the wayof withdrawals by the different perpetrator, also can make the act divided into the typeof withdraw cash by bank counters and withdraw cash by automatic teller machine.At present, there is considerable controversy about study on the act of nomineewithdraw other’s deposit by reporting the loss both in theoretical and practical circles.And the controversial views that is innocence, embezzlement, theft, and fraud.Wherein, the innocence holds that the act of nominee just constitutes the civil law ofunjust enrichment, preclude the application of the criminal law by reason of theprinciple of legality and modesty. The embezzlement holds that there formed de factorelations of commission between the nominee and the real depositor, the state ofdeposit possessed by nominee. The theft holds that the nominee transferred thedeposit of others to his possession in secret and peaceful way, against the will of realdepositor and bank. The fraud holds that the nominee deceived the bank, led to thedepositor suffered property damage, constitute triangle fraud. Through induction andassessment of controversial views, there is a certain lack of these views.In order to find a reasonable solution about study on the act of nominee withdrawother’s deposit by reporting the loss, needing to clarify some related theoretical issues.In fact, the relationship between the unjust enrichment and infringement of propertycrime is a kind of cross-relations which not in absolute opposite under the normalcircumstances. Possession of deposit should be expanded in two cases, the depositclaims belong to interests of property possessed by nominee, the cash on depositbelong to real property possessed by bank. When the nominee don’t have legitimatewithdrawal rights, withdrawal will infringe upon the cash which de facto possessed bybank. The key difference between the fraud and theft lies in that whether the perpetrator’s behavior belong to understanding of error and deliver the property. Andthe key difference between the triangle fraud and theft (indirect) lies in whether theperpetrator have the authority or status of dispose the victim’s property. But themachine cannot be cheated. After clarifying related theoretical issues, put forward thespecific views about the act of nominee withdraw other’s deposit by reporting the loss.The act of nominee withdraw cash by bank counters constitute the crime of fraud. Theact of nominee withdraw cash by automatic teller machine constitute the crime oflarceny.