Author: Courtyard of Tsinghua university law teachs Zhang Mingjie to release time: 2008-04-01 08:26:05
Come from legislation talking say, abnormal of measurement of penalty results from overweight legal punishment again. But, on one hand, cannot because sentence life imprisonment overweight, the action that denies Xu Ting belongs to larcenous finance orgnaization. On the other hand, since sentence life imprisonment overweight, must reasonable the relevant provision that uses criminal law, sentence the penalty under life imprisonment to Xu Ting. To this, have two ways that can offer an alternative: (1) applicable criminal law the 63rd reduce punishment the 2nd times. Be in applicable this when, answer to make the court decision that reduces punishment first according to legal process, chase class to appear in the newspaper next to approve of top people court. (2) the behavior of cognizance Xu Ting belongs to larcenous finance orgnaization, but do not think its theft amount is particularly huge.
About Xu Ting case conviction measurement of penalty, go up in criminal law originally not complex, but various reasons, bring about this case to be fried bubbling with noisely. The article does not analyse these reasons, explain from criminal law angle only: Xu Ting's behavior belongs to larcenous finance orgnaization, but can sentence the penalty under life imprisonment.
Steal, it is to point to it is a purpose with detinue, disobey the volition of the injured party, the property that has another person transfers him or the action that a third party has.
Xu Ting has detinue objective. With respect to larceny character, detinue purpose the function of this one subjective element, depend on making larceny and destroy what property blame and undeserved division condemn punish intentionally to embezzle behavior photograph distinction, reason detinue purpose, it is to point to use property and the meaning that eliminate other right. The lends the place that write down card account ready money that makes thunderbolt know perfectly well his has more than yuan 170 only, more than yuan 170 thousand behavior is taken away after the fault that discovered ATM machine, have benefit to use apparently meaning and eliminate a meaning, have detinue objective namely. What Xu Ting puts forward " original idea is to want to take money, protection is good return a bank " exculpatory, get self-identity impossibly.
Xu Ting's behavior accords with the objective important document of larceny completely. (1) Xu Ting's behavior is the act that violates bank governor volition. According to basic financial regulation, bank governor agrees with depositor to take out as corresponding as its deposit forehead ready money only, won't agree to take money specified amount exceed the case of deposit forehead. This also know for depositor place. Make what the behavior of thunderbolt gets bank governor impossibly agree, disobey the volition of bank governor necessarily instead. The beguiling behavior that Xu Ting's behavior is not the understanding mistake that makes bank governor produces punish property, friend establishs crime of fraud impossibly, establish the financial crime of fraud that regards crime of fraud as special kind impossibly also of course. The construction of crime of fraud and financial crime of fraud is: Behavior person carries out beguiling behavior -- the understanding of belongings of punish of generation of the other side is wrong -- the other side is based on belongings of understanding mistake punish -- behavior person or a third party acquire property -- the injured party suffers belongings loss. But, the machine cannot be cheated, namely the machine makes the fool in crime of fraud and financial crime of fraud impossibly. So, the behavior of cognizance Xu Ting constitutes crime of fraud and financial crime of fraud, have instead violate a crime criminal law decides a principle disrelish (Xu Ting's behavior also does not belong to ill will to overdraw) . (2) larcenous object, can be the property that other owns in fact only, behavior person is impossible that him theft takes some property in fact. But, want behavior person to did not own some property in fact only, although its are jural,owned this property, this property also can become the target that behavior person steals. The cash inside ATM machine is had by the bank. On one hand, after depositor stocked cash the bank, this cash is had in fact by the bank, is not to continue to be had by depositor; Exceed the cash of depositor deposit forehead, more have by the bank. On the other hand, the bank has the ready money inside ATM machine this be related is solid, ATM machine itself suffers damage and perhaps do not change because of ATM engine occurrence trouble. So, the object of the theft that make thunderbolt is the property that other owns. As contrary as larceny, the object of embezzlement blame can be to go to be had for him person only (keep for you) other property perhaps is not the property that was based on other original idea to break away from other to have (forget content and bury thing) . The breakdown of ATM machine, the property that did not make among them cash becomes Xu Ting to have and forget content, bury thing, reason makes the behavior of thunderbolt do not establish embezzlement blame. (3) steal the feature of behavior is move property to have, its means does not have special demarcate; Occupy some taking with respect to move model belongings blame, if it were not for accords with other property blame diagnostic behavior, be possibly to steal behavior by the evaluation. Make what thunderbolt uses him borrow the action that marks card and ATM engine trouble to take out more than yuan 170 thousand, belong to the ready money that has the bank to change the larcenous behaviour that has to oneself. Although think to steal must " secret filch " , just also mean behavior person to adopt the methodological filch that thinks the injured party won't discover at that time oneself, and the behaviour that does not affect Xu Ting establishs larceny. Many people think Xu Ting's behavior is not larcenous behavior, however just when take paragraph action. This is not fact of Baconian below the guidance that larceny makes important document case apparently, consequently undeserved. When armour general second basket in one bird (value number is larger) when let slip, we cannot leave criminal law to set, make " the behavior of armour is the nature that makes beautiful birdie returns to beauty, consequently innocent " conclusion, and what should set with criminal law is intended destroy property blame form important document to be guidance, the property that the behavior of cognizance armour destroyed second (the value that makes second lost property) . Same, when us with larceny when forming important document to be case of directive and Baconian Xu Ting, with respect to the conclusion that can reach Xu Ting's behavior has larceny to establish a condition.
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