The Distinction Between Theft And Fraud In The New Payment Environment

At present,the new type of payment,which depends on the modern computer technology,is springing up in all aspects of life.However,such payment platforms like Alipay and WeChat payment also allow criminals to take advantage of them.With the help of the new payment method,the new means of property crime are diversified and complicated,which brings difficulties to the evaluation and identification of property crime,and causes difficulties and disputes in the identification of charges in judicial practice.As to those cases of changing two-dimensional code that under discussion,the defendants were convicted as larceny in judicial practice since 2016.However,there has been controversy in the theory of Criminal Law.One scholar even puts forward the "theory of innocence" when many other scholars still argue about larceny and fraud.There are three different viewpoints in the theory of fraud,including common fraud,triangular fraud and new triangular fraud.There are two viewpoints in the theory of larceny including direct larceny and indirect larceny.Based on the conclusion that the perpetrator of the two-dimensional code case should be evaluated by the Criminal Law,this paper divides the viewpoints of the theory of larceny and fraud into "triangle relationship" and "bilateral relationship",from the perspective of the relationship between the subject involved in the case.The "triangle relationship" includes the theory of triangle swindle,new triangle swindle and the indirect principal of larceny.The subject relationship of this case was "the bilateral relationship".The victim of this property crime should be the businessman.In fact,when the defendant replaced the two-dimensional code,a causal process for subsequent violation of the victim's interests had already been established.The defendant only had to wait for someone to scan the two-dimensional code to pay for the goods;the payment behavior of the customer was the obligation of the contract of sale and purchase between the customer and the merchant,and the customer had no obligation to review the payment environment in the store.Therefore,the customer's payment behavior was not interfered with or induced by the defendant.The customer's payment behavior in this case did not need to be judged by the Criminal Law.The subject relationship of this case did not belong to "the triangle relationship".In this paper,the viewpoints of"triangle relationship" are evaluated one by one,and all of them are unreasonable.After ruling out the possibility of "triangular relationship" in this case,the subject relationship of "actor-victim" should be established.Was the case common larceny or fraud aimed at the merchant?The existence of the disposition act is the watershed to distinguish the crime of larceny form fraud.In the context of changing criminal patterns,it is necessary to discuss in detail the key distinguishing point between fraud and larceny--the disposition behavior,combining with the criminal behavior under the new type of payment environment.Therefore,the nature of the disposition behavior should be defined.To affirm the existence of disposition,there must be disposition consciousness subjectively,besides the transfer of possession objectively.The disposition consciousness is also the core of judging whether the disposition behavior exists or not,and the scope of the disposition consciousness should be reasonably limited.According to the theory,in the case of the two-dimensional code,the merchant's behavior of directing customers to pay did not constitute the act of disposition in the crime of fraud.Even if the merchant's behavior of directing customers to pay had the appearance of disposition objectively,the merchant had not disposed property because the merchant did not have the disposition consciousness.The case of the two-dimensional should be convicted of direct larceny.Finally,in the conclusion part,this paper teases out the reason of the two-dimensional case to be convicted of larceny from the constitutive elements.