| Internet finance is booming,and consumer credit products have emerged and are widely used.Ant Huabei,the most representative one among them,was developed on users’credit,and it only supports small credit consumption.However,due to the proactive consumption characteristics similar to those of credit cards,there have been a large number of cash out actions in practice.Because of the intertwined characteristics of this type of behavior,it blurs the boundaries between different crimes.The divergent opinions in the theoretical circle and the same case with different judgments in the practical circle show that this type of behavior has not yet formed a unified evaluation standard.The current debates on this type of behavior are mainly focused on the following points:Firstly,the nature of the Ant Huabei and its credit amount;secondly,whether the Ant Huabei platform(ie smart machine)can be the target of being deceived;thirdly,the identification of the victim;fourthly,is the provider of Ant Huabei service a financial institution?In order to correctly evaluate the cash out actions of Ant Huabei,a number of prerequisite issues need to be clarified.Although Ant Huabei is based on users’ credit and has similar characteristics to credit cards,it will be suspected of analogy and shall violate the principle of statutory crimes and punishments if it is equated with credit cards.The credit quota of Ant Huabei should be included in the category of property interests.However,according to the contract,users only have the right to use but no ownership.The ownership belongs to Ant Financial..Users can avoid a reduction in the available credit amount of Huabei based on the relevant contract terms,so they cannot be targeted for theft.The platform acts as an assistant in the operation process of the Ant Huabei.The platform runs according to a preset program and cannot be deceived,but the operator behind it can be deceived,which is a crime of fraud,which provides the possibility of being stealed.It seems that Anthuabai users have suffered losses,but in fact it isthe provider who suffers losses.what’s more,the deceived person and the victim belong to the same subject,which essentially denies the possibility of the establishment of a triangular fraud.Fraudulent use cannot be a crime of theft,and it is more appropriate to evaluate it as a crime of loan fraud,because fraudulent use does not meet the essential characteristics of "secret" required by the crime of theft.While simultaneous delivery(disciplinary)is the key to distinguishing fraud and theft,the provider,who is the victim,,falling into the premise of misunderstanding,dispose the property.That is a deceptive transfer of possession,and the transfer of possession is also a manifestation of the act of delivery.Therefore,this type of behavior should be established as a fraud crime:the impostor fabricated the fact that he was a party to the contract based on the purpose of illegal possession,which caused the provider to misunderstand and dispose of his own property,and ultimately suffered loss while the fraudulent user has obtained the property.At this time,the deceived subject is the provider,who has a sense of sanctions and implemented sanctions,which conforms to the behavioral structure of the crime of fraud.Since this behavior occurred in the course of contract performance,it meets the constitutive requirements of the crime of contract fraud;in addition,given that the service provider has the identity of a financial institution,it also meets the constitutive requirements of the crime of loan fraud.Under circumstances,it is more appropriate to convict the crime of loan fraud in the end. |
