A Study On The Nature Determination Of The Property Encroachment Crime Of Replacing Two-dimensional Code

In the past three years,a new type of crime in which some lawbreakers encroached other people’s property by replacing(including covering)two-dimensional codes for payment.There are different opinions in the field of judicial practice and the academic community of criminal law on the nature determination of crime in such cases.There are three opinions: the “theory of theft”,the “theory of encroachment”,and the “theory of fraud”,and there is no universally accepted conclusion.This paper is devoted to explore and solve this problem.The body of this article is divided into four chapters and the full text is about50,000 words.Chapter Ⅰ: The act of replacing two-dimensional code and the deconstruction of relevant legal relationshipsThis chapter aims to lay a solid foundation for the discussion of the nature determination problem of the crime in the following paragraphs.Through the analysis of the principle and process of two-dimensional code payment,it is found that in such cases,the criminal acts committed by the perpetrators have the basic characteristics of “deceiving” the customers and inducing them to pay“voluntarily”.It encroaches the “customer’s property(money)ownership right”,rather than “customer’s(merchant’s)credit right to the payment platform” argued by some scholars.Through a comprehensive analysis of the legal relationships among the perpetrators,customers,and merchants in such cases,it is concluded that the relationship between the perpetrators and the customers is the criminal legal relationship between the perpetrator and the victim,while the relationship between the merchants and the customers is the civil legal relationship between the creditor and debtor.And there is no legal relationship between the perpetrators and the merchants,and the perpetrators just take advantage of the merchants’ negligence,thus successfully committing a crime on customers’ property.This paper clarifies that we should focus on the criminal legal relationship between the perpetrator and the customer when determining the nature of the crime.The civil legal relationship between the merchant and the customer(including the problem of creditor’s rights and debts and the problem of merchant’s negligence liability)is adjusted the relevant rules of civil law and has nothing to do with the focus of this paper,the problem of nature determination of the crime.Chapter Ⅱ: Criminal law jurisprudence analysis of the theory of theftThis chapter first points out the main conditions of the theft crime: First,the object of the crime is the property possessed by the victim;second,the perpetrator uses secret means to transfer the property of the victim directly;third,the act of theft completely violates the will of the victim.According to the above conditions,this paper criticizes and demonstrates the existing theories,such as the “theory of general theft”,the “theory of indirect principle of theft crime”,and the “theory of tripartite theft”:(1)There are three unreasonable points of the “theory of general theft”: first,the merchant’s property has not been encroached,so the merchant is not the victim;second,the act of replacing two-dimensional code for property encroachment is not the secret theft in the theft crime;third,the perpetrator of the crime does not violate the victim’s will.(2)The “theory of indirect principle of theft crime” can not be established.According to the “tatherrschaft”,the perpetrator has no control over the customer’s scanning and payment behavior.(3)The two internal viewpoints of the “theory of tripartite theft” can not be established.The unreasonable points of the first viewpoint,“indirect means” are:first,the merchant has never taken concept possession of money,and there is no discussion basis for this viewpoint;second,it fails to explain where the customer’s(people who possess the right)right to dispose of the merchant’s property comes from;third,the theft method in the viewpoint(making the unwitting people who possess the right to voluntarily give their property)is contrary to the secret theft method in traditional thefts;fourth,its legal structure has the suspicion of increasing the criminal responsibility of the perpetrator,and can not adapt to the criminal responsibility and punishment to the perpetrator.The unreasonable points of the second means,the “theory of separating the object of theft and the victim”:it is difficult to evaluate the relationship between the perpetrator’s theft of the customer’s property and the causality between the merchant and the victim as a causality relationship in the criminal law.Therefore,this chapter concludes that such cases can not be characterized as theft.Chapter Ⅲ: Criminal law jurisprudence analysis of the theory of encroachmentFirstly,this chapter points out the main conditions of encroachment: first,the object of encroachment is the property,oblivion,and burial of others in custody;second,according to the “theory of an act of acquiring”,the behavior of encroachment requires the perpetrator to change the legal possession of property into illegal possession.Based on the main conditions mentioned above,this paper criticized and demonstrates the “theory of encroachment” and holds that:(1)the object of encroachment(money from customers)in such cases is neither the property of others kept by the perpetrator,nor is it oblivion or burial,so it does not meet the requirements of the crime of encroachment concerning the object of encroachment;(2)the criminal behavior of the perpetrator does not conform to the behavior characteristics of the crime of encroachment.Therefore,this chapter draws the conclusion that such cases can not be classified as the crime of encroachment.Chapter Ⅳ: Criminal law jurisprudence analysis of the theory of fraudFirstly,this chapter points out the main conditions of fraud: first,the perpetrator adopts the deceptive behavior of “making up facts and concealing the truth”;second,the deceptive behavior leads to a wrong understanding of the victim;third,the victim voluntarily disposes of the property based on the wrong understanding,subjectively has an awareness of disposition,and objectively has the behavior of disposition.According to the main conditions mentioned above,this paper negates the “theory of two-way fraud”,the “theory of tripartite fraud”,and the “theory of new tripartite fraud” and affirms the “theory of common fraud”.This paper holds that:(1)The unreasonable points of the “theory of two-way fraud” are: it is difficult to conclude that the merchant’s behavior of disposing of commodities is the behavior of disposing of property in the crime of fraud,and it is also difficult to conclude that the “commodities” are the “losses” that the merchant had suffered based on the fraudulent behavior,so the merchant can not be recognized as the deceived and the victim.(2)The unreasonable points of the“theory of tripartite fraud” are: first,the deceived and the victim are customers that are not separated;second,the customer disposes of its own property rather than the property of the merchant;third,the customer does not have the status and right to dispose of the merchant’s property.(3)The unreasonable points of the “theory of new tripartite fraud” are: first,this viewpoint can not refer to a new type of criminal structure,but as if the scholars set the applicable conditions for the cases of replacing two-dimensional code in order to solve the problem of nature determination of the crime;second,it can not explain the key issue of “why the customer disposes of its property,and the merchant is identified as the victim”from the angle of criminal law,that is to say,it is difficult to evaluate the relationship between the perpetrator’s theft of the customer’s being victimized as a causality relationship in the criminal law.Third,the legal structure of this viewpoint will reduce the responsibility of the perpetrator,but increase the responsibility of the victim;fourth,its conclusion does not meet the “material identity” principle of the crime of fraud.(4)The reasons for the “theory of common fraud” are: the act of replacing(covering)the two-dimensional code by the perpetrator is deceiving,which leads to customer’s wrong understanding of the property receiver,thus disposing of its own money,and the perpetrator gets the money from the customer at the same time.Therefore,the property encroachment crime of replacing two-dimensional code should be defined as the common fraud between the two,and the conclusion is also in line with the principle of “material identity”.There are the following innovations in this paper:Firstly,this paper clarifies the legal relationships in such cases for the first time,and clearly points out that we should focus on the criminal legal relationship between the perpetrator and the customer when solving the problem of nature determination of the crime,thus laying a logical foundation of the criminal conviction.Secondly,this paper redefines the property nature of the encroachment object involved in this kind of case.By comparing the relationship between the third-party payment platforms and the users and the relationship between the banks and the customers,it is concluded that the nature of the customer’s reserve for the payment platform is different from that of the bank deposit.It is not the creditor’s right,but the money whose ownership belongs to the user.Then,this paper argues that the perpetrator encroaches the “customer’s property(money)ownership”rather than the “customer’s(merchant’s)credit right to the payment platform”argued by some scholars.Thirdly,this paper carries out a comprehensive response to the existing academic viewpoints and proposes independent opinions.Especially for the new“theory of encroachment” and the “theory of tripartite theft” that have not been responded by the academic community,this paper responds to the theories for the first time and points out the unreasonable points of these two viewpoints.Of course,due to the limited knowledge of the author,there are still many shortcomings in this paper.For example,Firstly,the expression of relevant theories is not concise and direct,and there is also a lack of analysis and judgment on relevant theories.Secondly,although the conclusion of this study can justify itself from the angle of jurisprudence,whether it has practical operability still needs to be tested by judicial practices.Thirdly,the french expression of French is lacking,and some texts are slightly vernacular and protracted.