The Qualitative Analysis And Regulation Approach Of Property Invasion Behavior By “Deceiving” Electronic Agent

Electronic agent refers to a computer program or other automated means that automatically handles relevant businesses representing the setter without the setter’s participation or audit after being set by the setter’s program.The electronic agent has no independent legal personality,which is a tool to handle relevant businesses on behalf of the setter.Vending machines,ATMs and third-party payment platforms are all electronic agents.The modes of property invasion behavior are mainly information fraud by inputting fictitious information and identity fraud by using others information without authorization.There are contentions of qualitative analysis about such cases between theft and fraud in justice practice,and debates among fraud,theft and credit card fraud in the academic world.There are factual errors in ignoring the nature of the object of the crime and the various legal relationships involved when judicial practice analyzes such cases applying traditional criminal law theory,and normative misunderstanding of ignoring the criteria for defining the crime of theft and fraud or the wrong criteria in the theoretical community.The dispute on the qualitative analysis of invading property by deceiving electronic agent is essentially the contention between fraud and theft,the key to clarify fraud and theft is to deconstruct the constituents of the two crimes,so as to ascertain the criteria for the distinction between the two crimes,and then estimate which crime such behavior belongs to.The crime of theft is a crime against the will of the victim has reached a consensus in the scholastic circles,but there is still controversy of whether the “secret theft” is a necessary constituent element of the crime of theft,and because property crime involving electronic agent usually infringes property interests,the theory which in favour of the crime of theft still needs to answer whether the property interests can become the target of theft and the way how to steal property interest.Based on the legal principle of crime and punishment,legal interpretation for criminal concept can’t go beyond the concept’s farthest boundary line.The essence of snatching is although one knows the property manager has found his criminal act,he still takes away the property openly by making use of the situation that the property manager can’t protect his property for having no time or discommodiousness;the concept of theft requires “secrecy” because openness has gone beyond theft’s farthest boundary line,so alleged “public theft” refers to “snatching”.That the “secrecy” is indispensable element of the crime of theft is this paper’s standpoint.based on the terminological habits of China’s criminal law,property interests and corporeal property are interchangeable concepts,so interests can become the object of the crime of theft.Acknowledging that the object of theft includes property interests will not damage the theft’s constitutive element being used to classify with other crimes.Interests theft can’t adopt tangible object theft’s objective structure of “break the old occupancy——establish the new occupancy”,we should reconstruct the interests theft’s behavior structure.The essence of theft is to break or invade secretly,so theft of property and theft of corporeal property share the same structure of “invade——brake——acquire”,and the structure of interests stealing is “intrusion into the control field of the right holder——breaking the interests control of the right holder——acquiring property interests”,embodiment of the structure is the transfer of property interests,the elimination of rights and the creation of obligations.The behavior structure of fraud involves the scope and qualification of the deceived person,the theory of the deceived person’s disposition behavior and the causality between misconception and property disposition.Regarding the scope of the deceived person,this paper holds that the machine cannot be deceived and the person behind the machine is not be deceived;regarding the qualification of the deceived person,a judgment method of “objective qualification theory” should be adopted to distinguish the indirect perpetrator of theft from triangle fraud;causality requires that the dupe disposes property based on misunderstanding which is caused by the perpetrator,so as to distinguish fraud from blackmail and extort;regarding the theory of dupe’s disposition behavior,there is contention between the theory of “necessary disposition awareness” and “unnecessary disposition awareness”,the theory of necessary disposition awareness failed to explain some cases such as interests transfer without consciousness and the content of “necessary disposition awareness” is complex and different.Based on these defects of necessary disposition,this paper agrees with the theory of unnecessary disposition awareness.Legal theory believes that “awareness”is part of “juridical behavior”,that is,“juridical behavior” is the unification of human subjective will and objective behavior,and “disposition behavior” as a sub-concept of“juridical behavior” should also have the “intention expression” element.In response to this question,a scholar advocates that replacing “disposition behavior” with“delivery behavior”,although “delivery behavior” as a fact conception don’t need“awareness”,the theory still cannot be applied to the occasion of real estate and property interests.Considering the defects of “delivery behavior”,there is a viewpoint of replacing “disposition behavior” with “the deceived person’s behavior”.The exact definition of “the deceived person’s behavior” is an act based on a misconception caused by perpetrator that can directly cause property damages without further action of the doer.the theory of the deceived person’s behavior doesn’t need “disposition awareness’.The four elements of the dupe,causality,voluntary and directness are the core elements of the “the deceived person’s behavior”.The theory of “the deceived person’s behavior” well reconciles the contradiction between “unnecessary disposition awareness” and “disposition awareness is indispensable part of the disposition behavior”,so the theory of the deceived person’s behavior is the viewpoint held by this paper,and is also the key to the distinction between theft and fraud.The distinction criteria between fraud and theft includes subjective criteria and objective criteria.The subjective intent of theft is “to steal”,which means that the perpetrator hopes to transfer the victim’s property without being found by the victim;the subjective intent of fraud is “to deceive”,which means the doer hopes the dupe will transfer the victim’s property to him based on the wrong cognition caused through the communication of property disposition matters.The objective criterion for distinguishing the two crimes is the means of conduct and the cause of the impairment of the victim’s property.The means of conduct in the crime of theft is to secretly invade and break,and the victim’s property damages are caused by the perpetrator’s direct act.The means of conduct in the crime of fraud is to communicate with the other party regarding property decision matters,and the cause of victim’s property loss in the crime of fraud is dupe’s direct “self-damaging behavior”,the the deceived person’s behavior need to meet four elements of the deceived person,causality,voluntariness and directness.According to the distinction criteria between theft and fraud,this article considers that the act which deprives others’ property by deceiving electronic agent doesn’t constitute the crime of theft,because the perpetrator don’t conform to the theft’s characteristic of invading or breaking;this kind of behavior also doesn’t constitute the crime of fraud,because the perpetrator doesn’t have the intention of deceive and this behavior lacks the elements of “the deceived person”,“causality”,so the behavior doesn’t meet the behavioral structure of fraud;this behavior also doesn’t constitute the crime of credit card fraud thanks to the third-party platform cannot be explained as credit card.But such behavior has the typical characteristic of “voluntariness” and“directness” of fraud,so such behavior should be a quasi-fraud which is similar to fraud.Explanatory theory failed to bring such behavior into any crime of current criminal law,which indicates that there are law loopholes that legislators haven’t foreseen when they design the law.The only way to fill the legal loopholes is to create new criminal regulations.Based on the common nature of such harmful behavior,the creation of electronic agent fraud is the best way to regulate such harmful act.