The Analysis Of Case About Gong Et Al.Using The Credit Card Left By Others To Withdrawals

Recently,the cases using credit cards which were left in the ATM to withdraw money increasingly appear in the judicial practice.How to qualitative in criminal law about these cases,is controversial legal science theory and have different views which are three mainly theory:encroachment theory,credit card fraud,and theft,there are also different opinions in the legal practice and result in different qualitative in these cases,the main focus of controversy is that using others credit card left in the ATM to withdrawals should be characterized as credit card fraud or theft.Credit card fraud of Gong,theft of Zheng Mougui,theft of Shan are the typical representative among these cases.From the objective characteristics view of credit card fraud,Gong and others do not correspond to the behavior characteristics and object characteristics of credit card fraud,and do not belong to using credit card fraudulently and "pick up other people's credit card and use" situation.From the analysis of the objective composition of theft,Gong and others' behavior are fully correspond to the objective elements of theft,and their behavior correspond to the behavioral characteristics and object characteristics of theft.Gong and others subjectively have the purpose of illegally possession of money in the credit card of others,objectively take the secret way to turn the property of others into their possession,should be characterized as theft.According to this,the court of second instance in Gong's case convicting him of credit card fraud belongs to incorrect qualitative,and Gong behavior should be characterized as theft,the court in Zheng Mougui case convicting him of theft is reasonable,and the court in Shan case convicting him of theft is not inappropriate except for wrong using of law basis.This is due to the fact that the contending parties'understanding about the fact of case and the law basis using to qualitative the behavior.Therefore,in order to deal with such cases better,and the consistency qualitative to similar cases,it should be an accurate understanding and further improve the relevant judicial interpretation.