| With the continuous advancement of information technology,both financial and banking industries have developed rapidly,which has greatly enriched and facilitated people’s lives.At the same time,there have been many cases of improper use of bank cards to illegally infringe on the property of others.For example,the actual depositor borrows another person’s ID card for a bank card for some special reasons,and then deposits cash in the account and holds the card.However,the real name of the bank card is used by the account holder,he/she holds the ID card to the bank to report the loss,makes up the card,and transfers the deposit in the card to their own account.In terms of how such behaviors should be evaluated,there is no consensus in the academic world and judicial practice.The controversial views mainly include the theory of innocence,theft,fraud,and embezzlement.The focus of controversy of these views is mainly on how to determine the ownership of deposits and the distinction of identifying the ownership between the civil law and the criminal law.This article is based on a real case in judicial practice.By analyzing the ownership of bank deposits,the relationship between improper gains in civil law and property crimes in criminal law,this paper makes a qualitative analysis of real names reporting the loss of other people’s deposits in the account.In addition to the introduction,the full text is divided into four parts with a total of about25,000 words.Part One: an introduction to the basic information of the case.It consists of four sections:the case,the basic facts,divergent opinions,and the focus of the case.It mainly introduces the basic information of Ma’s theft case,divergent opinions on the qualitative of Ma’s behaviors,and summarizes the focus of the disputes from the divergent opinions.Part Two: a jurisprudence analysis of case-related issues.First,the concept of possession in criminal law and the general rules for determining possession are explained.It is considered that possession in criminal law is the de facto control and dominance relationship formed by people over property,and the existence of the control and dominance relationship here should be judged with the subjective and objective elements of possession.Subjectively judge whether there is a general and abstract possessive meaning,objectively analyze thefactual and normative elements of possession,and the relationship between the two elements;secondly,this paper analyzes the legal relationship among the three parties,namely the bank,the real name person and the actual depositor,and judge the ownership of bank deposits.This article uses the "dichotomy" method to divide deposits into deposit cash and deposit claims,and uses the general rules of possession to determine the ownership of the possession.Among them,the deposit cash is held by the bank and the deposit claims are held by the real name person.Finally,exploring the relationship between unjust enrichment and property crime.It is considered that they are crossing rather than antagonistic.If the behavior of the actor meets the constituent elements of the criminal law and has serious social harm,it should be included in the criminal law.Part Three: analysis and conclusion of this case.Combined with the jurisprudence analysis in the second part,a conclusion is drawn on the controversial issues of this case.Among them,on the issue of crime and non-crime,Ma’s behavior constitutes a crime in criminal law;on the issue of this crime and the other crime,the behavior of the defendant Ma as a crime of encroachment.Part Four: the research enlightenments of this case.On the one hand,in terms of the ownership of bank deposits,we should adhere to the identity theory and summarize the general model for determining deposit ownership,in other words,the subjective and objective elements of possession are used to judge.Subjectively,we insist on a modest possessive meaning;objectively,we determine the ownership of deposits by combining factual factors and normative factors.On the other hand,property crimes and unjust enrichment in civil law are interwoven,not opposite.When violations of property meet the criminal elements of criminal law,those actors should be punished by the criminal law,and cannot be exonerated on the grounds of unjust enrichment. |
