利用计算机实施财产犯罪定性问题研究
发布时间：2018-10-29 17:58
【摘要】：利用计算机实施的财产犯罪中,机器只是充当工具的角色,不具有人格属性,所以计算机作为人们发生各种关系的媒介和载体,不可能成为法律上的主体,计算机没有自己的处分意识,一切行为都在人们的掌控之中,因而机器不能成为犯罪的对象。而计算机系统中的虚拟财产,根据它所处的具体环境,完全虚拟物的时候,它便不能成为刑法上的财物；当它能跟现实社会的经济交易产生关联时,便具有了财产属性,可以认定为财物;网上银行账户内的资金应当视为用户的财产,任何篡改转移的行为都是侵犯财产的行为。此类犯罪应当以侵入系统的时间作为犯罪着手的时间,以修改的金额能否为行为人所支配作为认定既遂的标准。对于许霆案件,应当以盗窃罪定罪,许霆原本要取100,却意外得到了999元,并且在明知机器故障的情况下,仍然继续取款,但凡一个能正常思考、具有正确良知的人都不会去拿不属于自己的钱财,所以他的行为毫无疑问地构成了盗窃。拾得他人信用卡在ATM机取款应当认定为盗窃罪,因为机器不能成为犯罪的对象,机器不能被骗,而拾得信用卡取款又完全符合了盗窃罪的犯罪构成。诈骗信用卡使用的情况下,并不意味行为人占有了存款,关键问题在于持卡人是否对卡中的存款做出了概括性的处分,如果取款金额多于被害人的处分意思,就超过部分在ATM机上使用的,成立盗窃罪,在柜台或商户使用的,成立信用卡诈骗罪；如果只有一个行为,则成立想象竞合犯,若存在两个行为,则应数罪并罚。侵占他人信用卡在ATM取款的行为应当以盗窃罪论处。盗窃信用卡并使用一概以盗窃罪论处,但构成要件中包含了信用卡诈骗的情形,与信用卡诈骗罪可能存在竞合,这直接关系到共犯的处理。抢劫信用卡的情况下,首先成立了抢劫罪,如果又去取款,则同时成立了盗窃罪。伪造的信用卡在ATM机取款的行为应当定为盗窃罪而不是诈骗罪,同样是基于机器不能被骗的理由。利用非法手段侵入他人网上银行转账消费行为,如果财物控制者没有受骗上当,未将财产转移给行为人进行事实上的有效支配或控制,则行为人取得财物的关键手段是秘密窃取行为,构成盗窃罪。如果财物控制者上当了,已经或者事实上把财产转移给行为人来控制支配,那么应当构成诈骗罪。概括起来,就是当财物所有者在没有处分意思的情况下,为盗窃罪；在有处分意思的情况下,为诈骗罪。
[Abstract]:In the property crime committed by the computer, the machine only acts as a tool and does not have the personality attribute. Therefore, the computer, as the medium and carrier of all kinds of relationships between people, cannot become the subject of law. Computers do not have their own sense of punishment, all behavior is under the control of people, so machines can not be the object of crime. And the virtual property in the computer system, according to its specific environment, when it is completely virtual, it can not become the property on the criminal law; When it can be connected with the real social economic transaction, it has the property of property and can be regarded as the property. The funds in the online bank account should be regarded as the property of the user, and any tampering and transferring behavior is the act of infringing upon the property. This kind of crime should take the time of intruding into the system as the time to start the crime and whether the modified amount is at the disposal of the perpetrator as the criterion of determining the accomplishment. In the case of Xu Ting, he should be convicted of larceny.Hsu Ting originally wanted to take 100 yuan, but unexpectedly he got 999 yuan, and continued to withdraw money without knowledge of the malfunction of the machine. A man of good conscience does not take money that is not his own, so his actions undoubtedly constitute theft. Picking up other people's credit card should be regarded as theft because the machine can not be the object of crime and the machine can not be deceived, and picking up the credit card to withdraw money completely accords with the constitution of the crime of larceny. In the case of fraud of the use of credit cards, does not mean that the perpetrator has a deposit, the key issue is whether the cardholder has made a general disposition of the deposit in the card, if the amount of withdrawal is more than the victim's punishment meaning, More than part of the ATMs used, the establishment of theft, in the counter or business to use, the establishment of credit card fraud; If there is only one act, then the imaginative co-offender, if there are two acts, should be punished with a number of crimes. Embezzlement of other's credit card in ATM should be punished as theft. The theft of credit card and the use of it are punished as larceny, but the constitutive elements include the case of credit card fraud, which may be competing with the crime of credit card fraud, which is directly related to the handling of accomplices. In the case of credit card robbery, the crime of robbery is first established, and if the money is withdrawn, the crime of larceny is also established. Forgery of credit card withdrawals from ATM machines should be classified as theft rather than fraud, also on the grounds that machines cannot be deceived. If the property controller has not been deceived and the property has not been transferred to the perpetrator for effective de facto control or control, The key means for the perpetrator to obtain property is secret theft, which constitutes the crime of larceny. If the property controller has been deceived and has or in fact transferred the property to the actor to control it, it should constitute a crime of fraud. To sum up, when the owner of property in the case of no punishment, for theft; in the case of punishment, for fraud.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.35
本文编号：2298386
[Abstract]:In the property crime committed by the computer, the machine only acts as a tool and does not have the personality attribute. Therefore, the computer, as the medium and carrier of all kinds of relationships between people, cannot become the subject of law. Computers do not have their own sense of punishment, all behavior is under the control of people, so machines can not be the object of crime. And the virtual property in the computer system, according to its specific environment, when it is completely virtual, it can not become the property on the criminal law; When it can be connected with the real social economic transaction, it has the property of property and can be regarded as the property. The funds in the online bank account should be regarded as the property of the user, and any tampering and transferring behavior is the act of infringing upon the property. This kind of crime should take the time of intruding into the system as the time to start the crime and whether the modified amount is at the disposal of the perpetrator as the criterion of determining the accomplishment. In the case of Xu Ting, he should be convicted of larceny.Hsu Ting originally wanted to take 100 yuan, but unexpectedly he got 999 yuan, and continued to withdraw money without knowledge of the malfunction of the machine. A man of good conscience does not take money that is not his own, so his actions undoubtedly constitute theft. Picking up other people's credit card should be regarded as theft because the machine can not be the object of crime and the machine can not be deceived, and picking up the credit card to withdraw money completely accords with the constitution of the crime of larceny. In the case of fraud of the use of credit cards, does not mean that the perpetrator has a deposit, the key issue is whether the cardholder has made a general disposition of the deposit in the card, if the amount of withdrawal is more than the victim's punishment meaning, More than part of the ATMs used, the establishment of theft, in the counter or business to use, the establishment of credit card fraud; If there is only one act, then the imaginative co-offender, if there are two acts, should be punished with a number of crimes. Embezzlement of other's credit card in ATM should be punished as theft. The theft of credit card and the use of it are punished as larceny, but the constitutive elements include the case of credit card fraud, which may be competing with the crime of credit card fraud, which is directly related to the handling of accomplices. In the case of credit card robbery, the crime of robbery is first established, and if the money is withdrawn, the crime of larceny is also established. Forgery of credit card withdrawals from ATM machines should be classified as theft rather than fraud, also on the grounds that machines cannot be deceived. If the property controller has not been deceived and the property has not been transferred to the perpetrator for effective de facto control or control, The key means for the perpetrator to obtain property is secret theft, which constitutes the crime of larceny. If the property controller has been deceived and has or in fact transferred the property to the actor to control it, it should constitute a crime of fraud. To sum up, when the owner of property in the case of no punishment, for theft; in the case of punishment, for fraud.
【学位授予单位】：南京师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.35
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