Qualitative Study Of "Theft And Fraud" In Online Payment

The popularity of the Internet and the development of mobile network payment technology have changed the traditional transaction mode of physical money and bills.As some of the transactions are transferred from offline to online,property crimes are also shifted from the traditional two-person model of the perpetrator to the victim to a new three-party model of the perpetrator,the victim,and the thirdparty payment platform.This kind of relying on the new payment model of the Internet to implement the crime of financial crime often has the characteristics of "theft and deception intertwined",which leads to the frequent occurrence of the phenomenon of "different judgments in the same case",the urgent need to unify the qualitative thinking.There are various types of such crimes,including transferring funds in others’ third-party payment accounts,transferring funds in the bank cards bound to others’ third-party payment accounts,transferring the principal and interest of others’ wealth management funds through third-party payment platforms,and transferring others’ credit money through third-party payment platforms.Among them,transferring funds in others’ third-party payment accounts is one of the most basic types of criminal behavior,so this paper takes such behavior as the perspective to study the qualitative thinking of "intertwined theft and fraud" in online payment.The act of transferring funds in another person’s third-party payment account refers to the act of the perpetrator logging into the victim’s third-party payment account by impersonating another person through illegal means and transferring the balance in the victim’s account to a third-party payment account controlled by himself or a third person by way of transfer.The act exists in three qualitative views of theft,fraud and credit card fraud.Specific analysis of the qualitative reasons in the judgment,combined with the theoretical analysis of scholars,it can be seen that the differences focus on the attribution of funds in the third-party payment account,the nature of the third-party payment account,and the existence of the victim’s disposition behavior.Accordingly,the controversial focus can be summarized as follows: whether the funds in the third-party payment account were possessed and transferred,whether the third-party payment platform was defrauded,the authority basis of the third-party payment platform’s act of transferring funds according to the predetermined procedure,and whether the third-party payment account can be analogous to a credit card.In order to respond to the above focus issues,first of all,it is necessary to clarify the prerequisite issues related to third-party payment.The third-party payment platform refers to a transaction support platform provided by a third-party independent institution that has contracted with a commercial bank and has certain strength and reputation guarantee,and is a non-financial institution.Third-party payment accounts are highly similar to credit card accounts in terms of function and usage,but due to the nature of the open party as a non-financial institution,they cannot be characterized as credit card accounts and should be characterized as payment accounts.The funds in the third-party payment account are in the possession and ownership of the user,and there is a transfer of possession in the act of transferring funds in the third-party payment account of others.Secondly,it is necessary to analyze the key issue of distinguishing the crime of theft from the crime of fraud in terms of disposition awareness and disposition authority,i.e.whether there is disposition behavior.In terms of disposition consciousness,we take the position that the platform does not have consciousness,but the administrator behind the platform has disposition consciousness based on the theory of "pre-determined consent".In terms of disciplinary authority,we take the combination of audit obligation theory and objective authority theory as the standard,and believe that the platform has the right to perform disciplinary acts.Finally,the arguments are logically tested in terms of the logical unity of the behavior determination idea with the existing legal norms and the effective judgment.The act of transferring funds in the third-party payment account is similar to the act of fraudulent use of other people’s credit cards as stipulated in Article 196,paragraph 1,item 3 of the Criminal Law of China,and the judicial practice also indirectly approves the expression of the position that "the platform manager can be cheated".Therefore,it was found that the act constitutes fraud satisfies the requirement of logical uniformity.In summary,in the act of transferring funds in another person’s third-party payment account,the perpetrator uses deceptive means to conceal the fact that he is not the user himself from the third-party payment platform and the administrator behind it,and the platform party disposes of the funds in the user’s third-party payment account instead of the user based on the misconception that the perpetrator is the user himself,making the perpetrator acquire property while the user suffers property loss.The pattern of behavior is consistent with the composition of triangular fraud,and such behavior should be found to constitute fraud.