The Qualitative Research Of Use Alipay To Transfer Accounts By The Lost Phone

With the continuous development of network technology and Smartphone,The using of the third party payment platform,like Alipay,Wechat,Tenpay,becoming more and more prosperity,it has gradually formed the third party payment platform in which the bank as the leading and the third party payment platform as the backing.And this convenient and efficient third party payment has been used in every field of life,many people would install Alipay software on the Smartphone.But,if the Smartphone was lost,the personal balance in the Alipay account and the money in the binding bank card account's security will be threatened.It happened the criminal act which transfer the money of the Alipay account and the binding bank card account after pick up other's phone.The judicial practical and theoretical circle has controversy about how to qualitative this act.From the perspective of the decision of the court,there are controversies of theft,fraud,or fraud of the credit card,and there has always been controversies in the theoretical circle about how to qualitative this act.So it is necessary to analysis the act of transfer money by the Alipay after pick up other's phone,unified the standards,avoiding the different judgment.Besides introduction,this article has four parts,there are about 24000 words in total.The first part is a basic introduce of the case,introduce the cause and the detail of He's credit card fraud,and get the different opinion of the case in theory and practice: The prosecution thought that the machine can't be cheated,He's act of transfer money has against the will of the victim,constitute the crime of theft;The defense thought,He's transfer act had been reviewed and approved by the Alipay company,it was triangular fraud,constitute the crime of fraud;The court thought that the phone of victim,the phone number,the information of Alipay account and it's code are credit card information,the act of He constitute the crime of fraud of credit card.After clear differences of the case,summarize the focus of controversy of the case: how to qualitative the acts of transfer money after pick up other's phone.The second part is the jurisprudential analysis of the question.the jurisprudential analysis is about the first part's controversy.Firstly,the Alipay company is non-financial institution,Alipay is not the credit card which stipulated in the criminal law.Secondly,the occupant and the owner of the money of Alipay account and the binding bank card account was separated,although the customer is the owner of the money,the occupant is the bank.Thirdly,according to the key difference between theft and fraud,whether the decider dispose of property base on cognitive mistake,analysis the range of the victim and the act of disposition and qualification of decider.The last,under the background of rapid development of financial network,the essential of the fraud of using credit card has change.the credit card can be either entity card or credit card information;the object of fraud of using include machine;the essential of the fraud of using is the inadequate actor let others believe he is the adequate actor and has been authorized,then he get money,disrupt the financial order.The third part is the analysis and conclusion of the case.On the basis of jurisprudential analysis,give the qualitative conclusion of the acts of transfer money after pick up other's phone.Alipay is not the credit card which stipulated in the criminal law,the money of Alipay account and the binding bank card account was separated,so the acts of He should affirmed respectively.One side,the occupant of the money of Alipay account is the bank,the Alipay company strictly operated in accordance with the instruction of the user,it doesn't have right to dispose victim's property,and the Alipay which as intelligent program would not in wrong understanding.The defendant against the will of others when he transfer the money,and it quite big amount,the defendant constitute the crime of theft.The other side,the phone number,the code of bank card,the verification code which He got after he pick up the phone belongs to credit card information,the act of transfer money of the binding bank card was review and approval by the bank,disturbing the order of the financial management,constitute the crime of fraud of the credit card.The forth part is the revelation of the research.Firstly,the characteristic of convenient and quick of the Alipay makes it have more and more user,the crime which by the Alipay becomes more and more too,but it have controversy in the judicial practice,the supreme people's court and the supreme people's procuratorate should give judicial interpretation to uniform the application of such cases.Secondly,we should attention that the carrier to transfer money can either phone or pad in judicial practice;the platform to transfer money can be other third platforms;the way to get phone is not only picking up,when the act of picking up constitute crime,it should be combined punishment with transfer act.The last,we should take acts from aspects of the Alipay,the bank and the user to prevent such crimes from happening.