The Criminal Nature Of Online Financial Infringement Under The New Payment Method

With the further development of the Internet,the new payment method represented by Alipay is gradually replacing the traditional cash payment.The "Cash Free era" has arrived.The emergence of new payment methods fundamentally changes the complex process of offline payment and brings great convenience to people's daily life.However,the reform of payment methods has also created a lot of new behaviors of financial invasion.The most typical example is the transfer of funds from other Alipay accounts.Different from the traditional cases of property infringement,this kind of property infringement is based on the new payment method,showing the characteristics of theft and fraud,which makes the boundary between theft and fraud more blurred.In view of this kind of property infringement,there have been a large number of cases with different judgments in practice,which also caused a hot discussion in the criminal law academic circle.Specifically,the disputes on the identification of this kind of property infringement mainly focus on the application of the charges of fraud,theft and credit card fraud.This paper holds that the kind of behavior is in line with the constitutive requirements of the crime of fraud.It should be recognized that the machine can be cheated,and specific accusations should be made according to different sources of funds.This paper is divided into three parts:The first part mainly analyzes the current judicial practice circles to identify the plight of the transfer of funds from Alipay accounts,and makes a unified analysis of the controversial issues in the criminal jurisprudence.This part first discusses the general situation of the new payment method and its impact on the conviction.Then focus on the judicial practice of this kind of property infringement behavior and the main reasons for the difference.Finally,according to the different sources of funds,this paper sorts out the controversial issues in academic circles,and shows the main basis of "theft theory","fraud theory" and "credit card fraud theory".The second part focuses on the controversial issues in the qualitative analysis of criminal law,including the legal position of Alipay platform and whether the machine can be cheated or not.It focuses on analyzing the legal relationship between Alipay users and banks,Alipay users and Alipay,so as to better understand the operation mechanism of Alipay.Alipay,as the third party independent of users and banks,does not have the functions of financial institutions.It is not suitable for Alipay to pay equal to credit card payment.At the same time,for the problem of whether the machine can be cheated,the author holds a positive attitude and agrees with the "robot theory".This part analyzes the whole process of the machine being cheated,and tries to construct the dogmatic structure of the machine being cheated,so as to establish the theoretical premise for the criminal law of the Internet property infringement under the new payment mode.The third part makes a specific qualitative analysis of the transfer of funds from Alipay accounts.First of all,the main obstacle of the theory of "consent" is the theory of "consent".The capital transfer request made by the perpetrator through identity elements verification is agreed with the presupposition of Alipay in accordance with the presupposed condition of Alipay.Therefore,it does not possess the core element of "breaking possession",which is necessary for theft.Conversely,the fact that the actor conceals the fact that he is not a real user makes Alipay platform fall into a wrong understanding,thereby transferring the user's capital,the user suffers property loss,and establishes a triangle fraud.In cases involving special fraud,the illegal transfer of funds from other Alipay bound bank cards should be considered as credit card fraud.The crime of credit card fraud and the crime of loan fraud should be recognized respectively for the actor who uses "Huabei" funds to cash out and "jiebei" loans.Finally,in order to further solve the problem of difficult identification of such criminal acts,it is necessary to formulate judicial interpretation and select relevant guidance cases in time.