Case import
In July 2020, when Hua Moumou was shopping in a certain shop, he found that the merchant had pasted the payment code on the porch at the entrance of the shop, and he started to think crookedly. The next day, Hua Moumou took advantage of the merchant's lack of attention and covered his collection code on the merchant's collection code. After the customer scanned the code to pay the money were actually entered the WeChat balance of Hua XX, after the incident, the public security organ found that Hua XX illegally profited a total of 6500 yuan.
So, in this case, Hua X's act of stealing the merchant's collection code is theft or fraud?
Some people believe that the act of stealing the merchant's collection code should be characterized as a fraud crime. Because the actor's act of stealing the collection code is carried out, the consumer falls into a wrong understanding (that is, the actor's collection code is mistaken for the merchant's collection code), thus disposing of the property.
Author's opinion
The author does not agree with the above views, the author believes that the act of stealing the merchant's collection code should be regarded as the crime of theft.
First of all, it should be made clear that in this case, the consumer has obtained the corresponding consideration of the goods, and there is no property loss, so the consumer is not the victim. The merchant provided the goods, but because of the act of spending so-and-so to steal the collection code, he did not get the consideration of the goods, and suffered property losses, so the merchant was the actual victim.
Secondly, the constituent elements of the crime of fraud require the victim to be a fraud based on the perpetrator, fall into a wrong understanding, and dispose of the property based on that wrong understanding. However, in this case, the victim merchant did not have a wrong understanding of Hua X's behavior of stealing the collection code, nor did it carry out the act of disposing of the property. Therefore, Hua X's behavior does not meet the constituent elements of the crime of fraud.
Furthermore, the crime of theft is generally manifested as the perpetrator secretly stealing the property of others for the purpose of illegal possession, which is completely against the will of the victim, and the victim does not necessarily know the fact that the property has been transferred and possessed. The crime of fraud is to make the victim fall into a wrong understanding and dispose of the property by fabricating facts and concealing the truth, so the victim in the crime of fraud disposes of the property based on a certain subjective will and knows the facts of the disposition of the property.
In this case, after the merchant and the consumer reached a transaction agreement and delivered the goods, the merchant enjoyed a realistic claim on the consumer. Therefore, the merchant has the right to dispose of the money paid by the consumer, and the consumer no longer has the right to dispose of it. Because the merchant does not recognize the fact that the payment code has been exchanged, there is no situation of falling into a wrong understanding, and it is even more impossible to carry out the act of disposing of the property based on the wrong understanding.
Hua X's act of stealing the collection code and obtaining the money is completely against the will of the merchant, and the merchant is unaware of it. Therefore, in this case, Mr. Hua used the means of secret theft to transfer the merchant's possession of the money. The consumer scan code payment is based on the merchant's request for consideration after delivering the goods, which belongs to the entire transaction behavior between the merchant and the consumer. Therefore, the act does not involve the subjective will of the merchant to dispose of the property to Hua X, and the payment behavior is based on the requirements of the merchant, and the loss is ultimately borne by the merchant, so the merchant is the victim of this case.
In summary, the act of secretly exchanging the merchant's collection code is an act of secretly stealing the merchant's property for the purpose of illegal possession, the amount is relatively large, which meets the constituent elements of the crime of theft, and should be investigated for criminal responsibility for the crime of theft.