Lawyer

Chapter 735 Typical Fraud

"The court investigation is over, and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense. The debate should focus on determining charges, sentencing and other controversial issues.

The appellant Zhou Jiangmeng will speak first. " said the presiding judge.

Zhou Jiangmeng's speech was similar to what he said before, holding a letter in his hand, and repeated what he said before.He wanted to say a few more words, but he was at a loss for words for a while, and he didn't know what to say. Finally, under the intervention of the judge, he hesitated and ended his speech.

"The defender of the appellant Zhou Jiangmeng made a speech," said the presiding judge.

"The presiding judge and the judge: the defender believes that in this case, the appellant Zhou Jiangmeng picked up Li Yuangong's passbook and used the method of guessing the withdrawal password to illegally withdraw other people's bank deposits.

The above-mentioned behaviors of the appellant not only fraudulently used the name of others to defraud the trust of the bank, but also secretly assigned the withdrawal password to withdraw other people's bank deposits without the other's knowledge.But in the final analysis, the appellant's behavior is a kind of fraudulent use, which should be classified as a crime of fraud. The specific reasons are as follows:

[-]. Generally speaking, stealing other people's property and defrauding other people's property by fabricating and concealing the truth, these two acts occur without the knowledge of the property owner and custodian, but the meanings of the two are not the same.

In the process of stealing other people's property, 'not knowing' means that the property owner and custodian are unaware of the perpetrator's objective behavior (or the perpetrator thinks that he has not been discovered subjectively). During the entire theft process, there is no problem of participation and cooperation of property owners and custodians.

However, in the process of fabricating and concealing facts to defraud property, "unawareness" means that the property owner and custodian do not know the truth based on a wrong understanding, which belongs to ignorance of the nature of the behavior. , the custodian is directly involved.

[-]. In terms of obtaining and transferring property, generally speaking, stealing property is an act unilaterally completed by the perpetrator when the property owner or custodian is unconscious.Fraud is the act of property owners and custodians consciously disposing of property by taking fictitious facts as real facts under the circumstances of misunderstanding.

[-]. As a property crime, the nature of this case is to infringe upon property ownership, and the acquisition of property is the key to the qualitative nature of this case.

In this case, the appellant cracked the password held by others by guessing the withdrawal password of others, which can be regarded as a kind of theft, but guessing the password does not mean that he has obtained other people's deposits, but only a means to further obtain other people's deposits. Moreover, the password itself has no value, so it has no independent legal significance.

As far as this case is concerned, before Zhou Jiangmeng obtained Li Yuangong’s bank deposits through the above methods, the deposits were completely under the control and domination of the bank.Zhou Jiangmeng's success in withdrawing other people's deposits was achieved through the trust of the bank through the delivery of the bank, and the bank has a clear understanding of the delivery of deposits.

The trust of the bank is based on a wrong judgment, and this is the result of Zhou Jiangmeng concealing the truth and using the name of another person so that the bank does not know the truth and mistakenly believes that he has the legal qualification to withdraw money. Therefore, this kind of behavior is a typical fraudulent use.

To sum up, the appellant Zhou Jiangmeng's behavior of illegally withdrawing other people's deposits by guessing the password is a fraudulent behavior, and his behavior should be convicted and punished as a crime of fraud.

In view of the fact that the appellant was a first-time offender and a casual offender, and all the stolen money was recovered after the incident, and his attitude of pleading guilty after being brought to justice was good, the defender suggested that he should be sentenced to three years in prison.complete. Fang Yi finished his defense and looked at the presiding judge.

The first draft of the defense opinion was written by Yun Qiao. Fang Yi gave Yun Qiao an idea, and then tried to get her to write the defense opinion.After receiving Yun Qiao's first draft, Fang Yi made several revisions, and the defense opinion of the final draft was far from Yun Qiao's original draft by a thousand miles.

Although the first draft of the defense opinion was modified beyond recognition by Fang Yi, Yun Qiao was very excited because the master asked her to start writing the defense opinion, and finally touched the core part of the case.But she knew that she still had a lot to learn. In Fang Yi's words, Yun Qiao's defense was more like a small essay, with too much nonsense.

"It is now for the public prosecutor to speak," said the presiding judge.

"The presiding judge and judges: The public prosecutor believes that the appellant Zhou Jiangmeng picked up other people's passbooks and took them for himself, and his behavior was essentially an act of embezzlement.

After that, the appellant used the passbook password he guessed to maliciously withdraw more than 14 yuan several times. After illegally taking other people's property as his own, he burned other people's passbook and refused to return it. His behavior should constitute the crime of embezzlement.

We recommend that the defendant be sentenced to five years in prison, over. Fang Yi was taken aback by the inspector's words.

Okay, at the first instance, both the procuratorate and the court found that Zhou Jiangmeng constituted the crime of theft.When it came to the second trial, the defender believed that the crime of fraud should be constituted, but the city procuratorate believed that the court of the first instance had mischaracterized the case, and the appellant should constitute the crime of embezzlement.Now the case has been changed from the AB option to the ABC option. I don’t know if the presiding judge will add another D to make the three missing and one more perfect.

On the trial seat, the presiding judge's brain was thinking quickly.

"The public prosecutor can respond to the defences of the defenders," the presiding judge said.

"Okay, presiding judge. Regarding the defender's defense, we express our views as follows:

In this case, after the appellant Zhou Jiangmeng picked up the passbook that Li Yuangong dropped under the bench, he should have returned the passbook to Li Yuangong, but he did not return it in time, thus forming a custodian relationship between the two.

The bank passbook under the bench should essentially belong to Li Yuangong’s oblivion. The appellant Zhou Jiangmeng refused to return Li Yuangong’s bank passbook after taking possession of it. His behavior violated the provisions of Article 270 of the Criminal Law and should constitute the crime of embezzlement. .complete. ’ the inspector responded.

"The defender can respond to the public prosecutor's opinion." After a while, the presiding judge said.

"Based on the Prosecutor's Defense Opinion and Responses, the Defense Counsel issued the following Defense Opinion:

The defender believes that the appellant Zhou Jiangmeng picked up Li Yuangong’s lost bank passbook and then withdrew the deposit, which is not an act of embezzlement, and should not be convicted and punished for the crime of embezzlement. The reasons are as follows:

First, the precondition for the act of embezzlement is that the perpetrator illegally takes the property of others legally held by the perpetrator as his own, and the object of the crime should be the property owned by others that has been legally held by the perpetrator.

In this case, although the evidence on file cannot rule out the appellant Zhou Jiangmeng’s legal possession of the bankbook he picked up, it cannot be concluded that Zhou Jiangmeng has legally held the deposit under the passbook.

Because the victim Li Yuangong had a withdrawal password on the passbook, losing the passbook does not mean that he lost control of the money in the passbook. The money in the passbook is not the object of embezzlement, and there is no object of embezzlement in this case. "Speaking of this, Fang Yi paused for no other reason, his throat was too dry.

(End of this chapter)