| In the economic life of the highly developed today in twenty-first Century, creditcard with its quick and convenient advantages, gradually entered into the life ofcommon people, but with the gradual popularization of credit card, credit card is lost,stolen, but also to the lives of ordinary people have added a lot of trouble and distress.Especially when the credit card behavior by others after picking up, especially in thepicked up others operate on the ATM card and withdrawal behavior in the criminallaw, how to determine the nature of the problem, is a controversial theory and legalpractice, benevolent see benevolence parties is wise. The Supreme People’sProcuratorate to solve the problem of the applicability of this law,"the SupremePeople’s Procuratorate on picking other people’s credit card and ATM in February19,2008(ATM) approved the use of" how the qualitative behavior. However, theSupreme People’s "reply" not in accordance with the expected to solve this judicialproblem, but more controversial voice. In practice, many of the judicial organ for thejudicial interpretation of the Supreme People’s procuratorate. But I do not agree, Ithink the others operation in the ATM machine on credit card behavior, which is not asimple civil violations, nor the meaning of criminal law on the crime of credit cardfraud or embezzlement, in this case, the subjective illegal possession of the money,the objective take the thought secret way, others will turn to their own property, shallbe investigated for criminal responsibility in the crime of theft, based on thecombination of Chongqing Lee bank money case is a typical case, through detailedanalysis, validity analysis prove the behavior qualitative for theft.The full text is divided into four parts.The first part, based on the basic situation of Chongqing Lee bank money caseintroduction, leads to the theory and the practice of similar cases in qualitativedifferences, and by way of enumeration, introduced one by one of four different viewson the case, how to qualitative. And the essence through the analysis and comparisonof four different views of the view, the argument focus.The second part, analysis the relevant jurisprudence focuses on the differentopinions on the issue, including the following three aspects, the first aspect isdiscussed by others in the ATM machine on the operation of the credit card cash isforgotten, through the discrimination of different points of view, that is not forgottenthe conclusion. The second aspect is the discussion of ATM machine can become theobject of crime of fraud, based on the concept, function of ATM machine and theanalysis of the basic structure of crime of fraud, the ATM machine can be concluded.Third aspects of human behavior is the forgotten in the ATM machine on the creditcard transaction behavior whether to belong to the meaning of the criminal law "or"analysis, through the analysis and comparison of three different situations of thepicking up credit card, demonstrates that this behavior does not belong to "use".The third part, this part is the analysis and conclusion on the case, the analysis inthis part of the legal issues related to the third part, demonstrated different opinionsabout this case is legitimate, and draw the case to a qualitative conclusion. Throughthis part of the analysis, the author overthrew the case as belonging to the civil law, criminal law of unjust enrichment of the embezzlement crime, the crime of credit cardfraud perspective, that will be the case as a crime of theft is the only properconclusions.The fourth part, this part first proposed the "reply" problems and deficiencies,namely,"replied" not different pick card cases are handled differently, it may lead tojudicial injustice may in judicial practice. According to the "reply" problems, putforward to reply of the Supreme People’s suggestions, including two points: one is topick different situation different conviction card; two is the general role of fraud.Keywords: credit card; ATM; use; forgotten; analysis and conclusion ofenlightenment;... |
PDF Full Text Request