Research On The Case Of Yao Withdrawing Money From The Lost Creditcard In ATM Machine

The judicial interpretation stipulates that “picking up other people's credit card and using it” belongs to “the fraudulent use of credit cards”,so using picked up credit card can be established “cheating with card” with certain conditions.Using others left in the ATM machine credit card does not conform to “picking up and using credit cards of others”,because the object of the “picked up” does not include others left in the ATM machine credit card.The object of the “picked up” should be excluded the possession of others,and left at the ATM machine's cerdit card belongs by banks.As a special type of crime of swindling,“cheating with card” should have the basic criminal pattern of swindling crime,but the ATM machine does not have the independent consciousness.Combination of the above two points,the behavior of using others left in the ATM machine credit card,in accordance with the components of the thief.The different doctrines of impossibility are essentially different criteria for the determination of danger.There are common theory,objective danger theory and specific danger theory in our country.The specific risk claims to act as the standard,in accordance with the special knowledge or behavior of ordinary people who feel the experience and knowledge of or related to this causal rule,determine the risk exists,is more reasonable.The study of criminal law should consider the problem of shaping the standard consciousness of the nation,and establish the explicit function of the criminal law.In the case of the behavior of people over the limit transfer behavior afterwards although it seems unlikely to succeed,however,the fact is not the limit of known knowledge,in the view of common people,the behavior of the implementation of the transfer behavior has the risk of infringement of property,worthy of punishment.When the perpetrator subjectively intends to steal the amount of crime and objectively theft of the amount of crime there is a deviation,should adhere to the principle of consistency between the subjective and objective,so that it will not result in sentencing abnormal,light or heavy.According to the accomplished and attempted part chose a principle of choosing the range of statutory penalty,directly determine the corresponding legal punishment range of such practices is easy according to the part of the attempted crime amount,but it may be unfair,sentencing may result in abnormal weight that does not comply with the principle of suiting punishment.Therefore,it is necessary to decide whether the attempted part is mitigated or not,and then compare it with the accomplished part.