Fraud case - the behavior of reporting the loss and withdrawing the deposit of others after selling the bank card in the name of the person should be analyzed as a whole

[Basic facts of the case]

At the end of August 2018, under the leadership of Cui Moumou (handled in a separate case) and others, Yu Moumou went to Beijing from the Inner Mongolia Autonomous Region to Beijing to apply for a China Merchants Bank card in the name of a certain person, and handed over the bank card and U shield to Ding Moumou for safekeeping. In September 2018, Ding Moumou sold the above-mentioned bank card to Yang Moumou who had a need to use it through online chat. On September 28, Yang transferred a total of more than 950,000 yuan to the card in Chaoyang District, Beijing, after depositing a small amount of money to confirm that the card could be used safely. Because the mobile phone number bound to the card was in the name of XX, after receiving a text message prompting the arrival of the account, Yu XX, Ding XX and others went to Beijing to privately divide the above money by reporting the loss of the bank card, replacing the new card, transferring and withdrawing money, etc.

On June 13, 2019, the People's Procuratorate of Chaoyang District, Beijing Municipality indicted Yu XX for the crime of theft to the Chaoyang District People's Court of Beijing, and the Chaoyang District People's Court sentenced Yu XX to six years in prison and a fine of 60,000 yuan for fraud on February 24, 2020. The People's Procuratorate of Chaoyang District, Beijing Municipality filed a protest on March 4, 2020 on the basis of a qualitative error, and the Third Branch of the Beijing People's Procuratorate supported the protest. On July 21, 2020, the Beijing No. 3 Intermediate People's Court rejected the protest and upheld the original judgment.

【Main Issues】

How should the perpetrator's conduct of taking the money in the card as his own after selling the bank card in his name to others for use by reporting the loss, replacing the card, or transferring money?

【Opinion Analysis】

Differences of Opinion

The first opinion is that Yu's conduct constitutes the crime of fraud. When the victim deposited money into the bank card involved in the case, he was able to realize that he was depositing the money in the name of another person, and had the intention of disposing of it, and the victim's act of transferring money to the bank card involved in the case was an act of disposition of transferring the money to Yu XX's possession, and the victim disposed of the property based on the misunderstanding of "believing that the money will not be transferred by reporting the loss or reissuing it", which meets the criminal composition of the crime of fraud.

The second opinion is that Yu's conduct constituted the crime of theft. After Yu XX sold the bank card in his name to the victim for use, the victim mastered the bank card, password, U shield, etc., and his act of depositing money into the bank card was not an act of disposing of property, nor did he have the intention of disposing of the money to be transferred to others for possession, and the money in the card was still in the possession of the victim in the general concept of society, and Yu XX took possession of the money in the card against the victim's will through methods such as reporting loss or withdrawing money, and it shall be found to be the crime of theft.

Comment and Analysis

In the author's opinion, the nature of the act cannot be accurately defined based on the act of reporting the loss and withdrawing the deposits of others in the name of one's own account, and it is necessary to conduct a comprehensive analysis of the overall behavior in light of the specific circumstances of the case. If the perpetrator takes possession of the money and voluntarily delivers it to the perpetrator because the perpetrator has committed fraud against the victim and misled the victim, there is a possibility that the crime of fraud will be established. If the perpetrator did not have premeditation, but only had a temporary intention when he saw the savings of others in his name, reported the loss and stopped payment, and withdrew the money as if it was already there, and objectively did not know about it to the victim, it is a typical secret theft method, and subjectively knew and pursued the result of the secret appropriation for himself, it may meet the criminal composition of the crime of theft. If the victim opens a bank account in the name of the perpetrator, but the money is entrusted to the custody of the perpetrator, and the perpetrator reports the loss and withdraws the money of others for his own use, there is also the possibility of establishing the crime of unjust enrichment under the civil law and embezzlement under the criminal law. Therefore, it is not appropriate to generalize how to determine the nature of the act of reporting loss and withdrawing the deposits of others in the name of one's own account. Combined with the specific conduct of this case, it mainly involves the dispute between theft and fraud. The author prefers the first opinion for the following reasons.

First, the perpetrator has the subjective intent to illegally take possession of another person's money. The purpose of illegal possession refers to the intention of excluding the right holder, disposing of the property of others as one's own property, and using or disposing of it in accordance with the purpose of the property. In this case, the bank card involved in the case was handled by Yu XX, but the deposit of more than 950,000 yuan in the card was deposited by Yang after purchasing the card, and Yang was the actual owner of the money. Judging from the fact that Yu XX actively cooperated with his co-defendant in handling bank cards, and after receiving the notice from his co-defendants, he came to Beijing from other places to report the loss of his bank card, reissue a new card, and obtain money, etc., Yu XX and others had the intention of disposing of other people's property as their own property. Therefore, Yu XX and the other co-defendants had the common intention of illegally taking possession of Yang's money. Yu XX also confessed that among his group, "Kaizi" (Ding XX) was the biggest leader, Cui XX was the second-level person, responsible for taking away the card for safekeeping, and the third-level person was responsible for finding people from various places to come to Beijing to apply for a bank card, indicating that Yu XX had a clear understanding of his role in the joint crime.

Second, the issue of the ownership of the property rights involved in the case.

What needs to be paid attention to and analyzed in this case is the issue of ownership of possession, that is, the question of who is in possession. The ownership of the deposit is special and disputed. According to Professor Zhang Mingkai's view, deposit has two meanings: one refers to the depositor's claim to the bank, and the other refers to the cash to which the deposit claim directs. In this sense, the question of ownership of the possession of the deposit includes the possession of the cash deposited and the possession (enjoyment) of the claim on the deposit. The depositor deposits the money in the bank, and the creditor-debtor relationship is formed between the depositor and the bank due to the savings contract, and the depositor possesses (enjoys) the deposit creditor's right. The depositor can take possession of the deposit through withdrawal based on the deposit creditor's rights it enjoys, but since the withdrawal can only be realized after the corresponding procedures are completed and confirmed, the essence of the deposit is controlled and controlled by the bank, that is, possession. That is, the cash to which the deposit claim points is in the possession of the bank manager, not the depositor. Since the bank's performance of the monetary debts formed by the deposit should be completed as long as the formal examination is passed, and it does not bear the obligation to investigate and verify whether the withdrawer is a depositor or a deposit creditor, the bank's performance of the monetary debt and the delivery of the money is legal and effective under the condition that the nominal depositor reports the loss of the replacement card and then transfers the money meets the requirements of the formal examination. The monetary creditor-debtor relationship between the bank and the nominal depositor is realized, and the bank does not have to bear the payment obligation to the actual depositor, nor does it suffer any loss due to the transfer of money by the nominal depositor. In this case, the actual depositor was Yang, the nominal depositor was Yu, and Yu obtained control and control over the deposit creditor's rights by reporting the loss and replacing the card, and the direct victim who suffered losses due to his behavior was not the bank, but the actual depositor Yang.

Third, whether there is a sense of punishment and punishment behavior is the focus of controversy, which should be analyzed and judged from the overall behavior.

As far as the same object of conduct is concerned, the crime of fraud and the crime of theft are opposites and can only be one of them. The key to determining whether the crime of fraud is constituted is to determine whether the perpetrator has carried out deceptive conduct that caused others to fall into a misunderstanding of the disposition of property, and whether the other person disposed of property based on a misunderstanding. The act of deception in the crime of fraud must be an act that causes another person to fall into or continue to maintain a misunderstanding of the disposition of property. In other words, there is a causal relationship between the act of deception and the act of disposition, and if the other person knows the truth and will not dispose of the property, then the act that causes the other person to dispose of the property is the act of deception. The perpetrator in this case had a premeditated plan from the beginning, and selling the card can be said to be a trap to attract others to make deposits, and the victim's operations were all within the control and expectation of the perpetrator. From the victim's point of view, the money deposited into the bank card was stolen, but from the perspective of ordinary people in society, he was actually defrauded. Yu XX's intention was clear from the beginning, opening a card was to let others deposit money, and then looking for the person who bought the card, waiting for the deposit, obtaining the person's money information in real time through mobile phone text messages, and quickly reporting the loss and freezing, which can be seen from the misunderstanding that a certain party is trying to make Yang trap someone or continue to maintain the safe use of the bank card and deposit money by fabricating facts and concealing the truth.

Whether the victim had the awareness of punishment and took the punishment was the focus of the dispute in this case. According to the relevant laws and regulations of the bank, individuals apply for bank accounts in real name and enjoy rights and obligations, when the account holder and the actual cardholder are inconsistent, even if the actual depositor holds the bank card and password, the account holder's dominance over the money deposited in the bank is stronger than that of the actual cardholder. Because the account holder can carry out acts such as reporting loss and freezing, reissuing new cards, transferring money, etc., the actual depositor's deposit claims are in an uncertain state of being possessed (enjoyed) by others at any time. In this case, Yang should have understood and expected that a certain party could obtain money by reporting loss and stopping payment, etc., and only transferred more than 950,000 yuan to the card after purchasing the bank card, and Yang confirmed that the card could be used by transferring 2 yuan. It is precisely because of the temptation to find that the bank card can be used after depositing a small amount of money, etc., that he mistakenly believes that a certain party will not transfer money by reporting the loss of the card, etc., so he deposits money into another person's bank card. However, Yu XX and others had already premeditated the transfer of property, and on the day that Yang transferred the money into the bank card, they reported the loss and froze the money, and transferred the money through re-application procedures. In this sense, it may be understood that Yang delivered property to someone else's bank card, and he thought that he had deposited it into an account under his control because he would not stop payment by reporting loss, but in fact, Yu had stronger control over the account. For this delivery, the victim thought that there was no delivery, but in fact it was delivered, which is a new feature brought about by the electronic account. From the perspective of the whole behavior, the acts of applying for and selling cards are closely related to the acts of reporting, freezing, and transferring money, forming an organic whole, which develops under the premeditated and controlled actions of a certain party. Therefore, the victim Yang X disposed of property after falling into a misunderstanding.

The essence of the crime of fraud is that the victim makes a disposition based on the trust of the transaction rules when the expected conditions are met before the premise of delivery (disposition), and if the trust and expectation of others are disappointed, the connection between the disposition and the premise of the disposition is broken, and the damage occurs. On the surface, the victim voluntarily handed over the property and harmed himself, but in essence, the perpetrator manipulated the premise of the punishment and formed a false impression that the victim was credulous. Yu XX and others created the false impression of selling the account control to others, inducing others to deposit money into an account under their control, and withdrawing the money by reporting the loss and stopping payment; Therefore, looking at the conduct as a whole from the perspective of ordinary people in society rather than from the perspective of the victim who was kept in the dark, Yu XX conspired with others to fabricate facts and conceal the truth to defraud Yang X of money for the purpose of illegal possession, and the amount was particularly huge, and his conduct was more in line with the behavioral characteristics of the crime of fraud, while the crime of theft could not fully and accurately evaluate Yu XX's criminal intent and characteristics.

Contributed by: Ge Lu, Beijing Municipal People's Procuratorate

Liu Zilu, People's Procuratorate of Chaoyang District, Beijing

Case editor: Ge Lu, Beijing Municipal People's Procuratorate

The original article was published in Capital Procuratorate Cases (Second Edition), edited by the Law and Policy Research Office of the Beijing Municipal People's Procuratorate, Law Press, December 2022, 1st edition, p198-203.

Finishing: The Legal Detachment of the Public Security Bureau of Suzhou City, Jiangsu Province (directly under the Branch) "Don't read, don't go" and "Poetry and Bamboo Dream".

Transferred from the criminal investigation case trial public account