| In recent years,with the continuous improvement of people’s living standards,driving motor vehicles has become the primary choice.The car rental industry has also developed rapidly with the change of people’s travel mode.However,it is precisely because the car rental industry is developing too rapidly and the relevant laws and regulations are not perfect and complete,which makes criminals have an opportunity to carry out criminal activities by using the characteristics of high mobility of cars in car rental and the need for car rental companies to transfer vehicles to the lessee.In the type of cases studied in this paper,the perpetrator further committed the crime by making use of the characteristics of car rental,so as to achieve the purpose of defrauding loans.That is,car rental and pledge cash out cases.Its characteristic is that the perpetrator first leases the vehicle from the car lessor for subjective illegal or legal purposes,then cashes out the vehicle by means of pledge loan and does not return it,and uses the borrowed money for extravagance,which is also not returned.The probability of such criminal acts in judicial practice is on the rise.However,through the collection of cases in judicial practice,it can be found that different courts in different regions,superior and subordinate courts and prosecution,defense and trial parties in judicial practice have great disputes over the qualitative,number of crimes and amount of crimes of the two acts in such cases,which directly leads to inconsistent trial results and different judgments in the same case,It will seriously affect judicial justice and judicial authority.This paper will discuss and discuss the judicial practice and the three most controversial aspects in the theoretical circle.They are the qualitative problem of behavior,the number of crimes and the identification of the amount of crime in the case of car rental and pledge cash out.Firstly,the starting point of this thesis is to explore the qualitative problem of behavior in the case,including whether car rental behavior and pledge cash out behavior belong to criminal behavior,and what crime does it constitute if it constitutes a crime.According to the different time of the perpetrator’s purpose of illegal possession of vehicles,car rental behavior is divided into cheating and legal car rental.Among them,because the perpetrator of rent fraud has the purpose of illegal possession of the vehicle and the lessor has property losses,it can be judged that the perpetrator’s rent fraud is socially harmful and meets the characteristics and requirements of constituting a crime.In addition,the actor’s behavior of cheating rent is consistent with the constitutive elements of the crime of contract fraud,which constitutes the crime of contract fraud.In legal car rental cases,the perpetrator did not have the purpose of illegal possession subjectively when renting a car.Although he had the purpose of illegal possession of the vehicle in the process of legal car rental,this "afterwards intention" can not be traced back to the previous behavior,That is,the behavior of legal car rental itself will not be evaluated as a crime because the perpetrator has the purpose of illegal possession of the vehicle in the process of possession of the vehicle.Therefore,the behavior of renting a car legally by the perpetrator does not constitute a crime.The act of refusing to return the car constitutes the crime of embezzlement.In addition,in the case of car rental and pledge cash out,the behavior of the perpetrator using another person’s vehicle to pledge cash out does not belong to civil fraud.Even if the lender belongs to a bona fide third party,it can not be relieved by the civil bona fide acquisition system,and there is still property loss.Therefore,pledge cash out constitutes a criminal act and specifically constitutes the crime of fraud.In the pledge cash out behavior after the perpetrator legally rents a car,if the perpetrator has the purpose of illegal possession of the vehicle when legally occupying the vehicle and privately pledges the vehicle to others to obtain loans for extravagance,the perpetrator’s pledge cash out behavior not only constitutes the crime of fraud to the lender,but also the crime of embezzlement to the vehicle owner.Secondly,there are also great disputes about the number of crimes in car rental and pledge cash out cases in theory and judicial practice.This paper believes that in the case of car rental fraud and pledge cash out,there is only a de facto implicated relationship between rent fraud and pledge cash out,but there is not necessarily a legal implicated relationship.And because the two acts before and after do not belong to the same crime and do not have the conditions for continuous crime,the perpetrator cannot be identified as a continuous crime.In addition,the two acts of the perpetrator infringe on different legal interests,so the latter act cannot constitute an act that can not be punished afterwards.If the number of crimes of the two acts of the perpetrator is consistent with the combination of the number of crimes,they should be punished together.In the legal car rental and pledge cash out cases,because the perpetrator has only one criminal act,namely pledge cash out,and infringes on two legal interests,he should be punished according to the alternative felony of imaginative concurrence.Finally,on the issue of determining the amount of crime,this paper believes that in the case of fraudulent rental of vehicles and pledge cash out,based on the fact that the first and second acts constitute criminal acts,and the number of crimes conforms to the number of crimes in which the number of crimes is combined,the principle of punishment is combined punishment for several crimes,and the punishment for the first and second criminal acts should be finally determined according to the specific provisions after sentencing respectively.Therefore,the crime amount of the first and second acts should be calculated based on the vehicle value and the loan amount respectively,and the crime costs such as rent and deposit should be deducted.In the case of legal car rental and pledge cash out,because the perpetrator has only committed one criminal act,the heavier amount of the crime shall be taken according to the principle of adaptation of crime,responsibility and punishment,and the rent paid by the perpetrator shall not be deducted from the amount of the crime of embezzlement.In addition,there are similarities in calculating the amount of crime in different types of cases.That is,the interest deducted in advance before the loan cannot be counted in the amount of the crime,and the loan amount returned by the perpetrator before the crime should not be counted in the amount of the crime. |
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