| In the criminal law circle of our country,the controversy about the He Peng case reveals the research on wrong remittance cases.There are the theft/fraud theory,the crime of embezzlement and the innocence theory for the characterization of the wrong remittance.This characterization The dispute mainly stems from the difference in the definition of the ownership of the wrongly remitted deposits.If it is believed that the actual beneficiary legally possesses the deposits and thus has the ownership,then the act of taking away the wrong remittance does not constitute a crime,but is only an improper profit in the civil law.If it is believed that the actual payee only has possession of the deposit,and does not have the right to use disposal as the owner,the act of receiving or transferring infringes on the possession of others is a crime of embezzlement;if it is believed that the actual payee does not legally possess the deposit,it is a transfer of possession The crime of seizure.However,scholars have not reached an agreement on the premise of discussing the possession of deposits.One is that the concept of possession and the standard of determination are not uniform,and the other is that there is a deviation in the understanding and use of the meaning of the object of possession "deposit",specifically whether it includes the depositor’s rights to the bank’s deposit,or only refers to the deposit Cash is often not clear,and here is the discussion about whether the deposit creditor’s rights as a property interest can be the object of possession.Based on this,this article attempts to re-analyze the problem of deposit possession and its difficult points in obtaining wrong remittances,systematically and comprehensively analyze the issues involved,and find a reasonable solution in the context of my country’s current criminal law.The main contents of the paper include:The introduction first introduces the problem of wrong remittance cases,sorts out and summarizes the theoretical disputes and research status of this topic in our academic circles,and clarifies the ownership of deposit possession,and it is necessary to clarify the premise of the discussion,namely,the concept of possession and the scope of possession object.And based on the perspective from outside the territory,it examines the qualitative disputes about taking wrong remittances in German and Japanese criminal law theory.The first part mainly discusses the concept of deposit possession.Although born out of the civil law possession system,the criminal law possession is not the same as the civil law possession.In contrast to the many limitations of the traditional factual possession concept when faced with complex property relations today,it reveals that factual elements are not the essential attributes of possession.Therefore,it is believed that the normative concept of possession,which is decisive by the normative attributes of possession,is clearly progressive.,But also more able to adapt to the needs of real life.For objects held by deposits.Unlike the legislation of other countries,my country does not clearly distinguish between property and property interests,but it does not mean that property interests in the context of criminal justice in my country are not included in the category of property.On the contrary,the provisions of criminal legislation and related judicial interpretations have proved that property interests are also protected by the criminal law,and property interests are included in the property.Furthermore,in terms of the object of deposit possession,we should distinguish the possession of deposit creditor’s rights and the possession of deposit cash.In the second part,a detailed argumentation was made on the ownership of the deposit cash and the deposit creditor’s rights in the wrong remittance.The deposit possession problem in the wrong remittance case is actually a sub-proposition under the deposit possession possession issue.The structured distribution relationship can be reflected in the relationship between the creditor’s rights and debts behind the deposit contract for deposit claims.The bank account of the nominee of the deposit is his own distribution area,and the deposit creditor’s rights can be possessed under the criminal law.In the case of wrong remittance,the recipient as the depositary holder will naturally obtain possession of the creditor’s rights on the deposit after the remitter transfers the money.The beneficiary’s claim to deposit rights means that he has the right to withdraw money.Trying to deny the view that the recipient does not have the right to withdraw funds to deny possession of the deposit credit,ignoring the integration of the two,in fact it is the right to dispose of the right to the beneficiary.Negative,but the fact that the payee does not have sanction authority does not mean that there is no possession.Negative evaluation can only be made when the payee consumes as the owner or refuses to return.With regard to deposit cash,both the theory of depositors’ possession of cash and the theory of joint possession are difficult to gain a firm foothold in theory.The possibility of withdrawal of cash by depositors at any time is not the same as possession of deposit cash.According to the principle of possession is ownership,bank possesses deposit cash.It can also maintain consistency with civil law theory.The third part combines the previous conclusions to make a qualitative analysis of the beneficiary’s behavior in obtaining wrong remittances.The beneficiary’s possession of the deposit creditor’s rights,the bank’s possession of cash,and the removal of the wrong remittance did not result in the transfer of possession,and did not constitute the crime of theft or fraud against the bank.The condemnation of obtaining wrong remittances lies in the act of appropriating improper gains as one’s own.However,due to our country’s provisions on the crime of embezzlement,the possibility of deposit creditor’s rights as the object of the crime of embezzlement is excluded,so it should only be regarded as improper gains,and the intervention of civil means can safeguard the interests of the remitter. |
