How do you feel after reading this?
One word is miserable ~
There are 10 unsolved cases in Guangzhou ATM case, and sentencing is illegal.
Li kaifa
Near the end of the year and the beginning of the year, a case full of comedy in Guangzhou has become a topic of discussion in the streets of Chinese people. However, the end of the problem is very heavy. In fact, the case is relatively simple. The core is that a young man in Guangzhou failed to use ATM and could not stand the temptation of interest:
On the evening of April 2 1 2006, Xu Ting, the former security guard of Guangdong Provincial High Court, came to the ATM of Guangzhou Commercial Bank to withdraw money. Xu knew that there was only 170 yuan in the card, and originally wanted to mention 100 yuan. When I accidentally pressed a "0", the ATM immediately spit out 1000 yuan. "I was surprised at the time, so I checked the balance and found that there was no deduction. Then I took 1000, and the ATM spit out 1000. " After 55 repeated operations, 55,000 yuan in cash was stuffed into Xu's clothes and his coat was fastened with a belt. "The money was stuffed into the shirt." At this time, Xu's colleague Guo Anshan came over. He wondered why it took Xu so long to get 100 yuan. Surprised, Xu went back to the dormitory with his colleague Guo Anshan and admitted the generosity of the ATM. At about 1 on the morning of 22nd, they came to the ATM again. Guo Anshan took out an agricultural bank card with a balance of more than 800 yuan, and Xu Ting helped him take out 1000 yuan. Later, he used his own card to withdraw about 1 10000 yuan-according to the bank statement, the number of consecutive withdrawals in Xu Ting was 102. On June 5438+February 65438+June 2007, the Guangzhou Intermediate People's Court held that the defendant Xu Ting used secret means to steal financial institutions for the purpose of illegal possession, and the amount was extremely huge, which constituted theft, so he was sentenced to life imprisonment, deprived of political rights for life, and confiscated all his personal property.
This is a typical comedy case, but the focus of readers' attention is what to sentence, whether it is enough for life imprisonment in criminal law and deprivation of political rights for life.
There are many opinions in support of the existing judgment. According to media reports, Zhong Wendong, director of the Criminal Committee of Guangzhou Lawyers Association, said that although the case seems to be too heavy, it is still within the statutory scope. For the purpose of illegal possession, Xu Ting took secret measures to steal his bank card while knowing that there was only 1.70 yuan in it. However, when he found out that there was an error in the banking system, he deliberately took possession maliciously, and took 1, 765.438+0 for malicious withdrawal and illegal possession. It is in line with the statutory requirements of theft to abscond after succeeding and squander the stolen money. At the same time, although Guo Anshan stole with him, they did not intentionally commit the same crime, but only adopted the same criminal means and implemented them separately, and the final payment was also based on the proceeds extracted from their respective cards, so it did not constitute the same crime, and the theft amount was calculated only by their respective withdrawals. According to the relevant provisions of the Criminal Law on theft, Guo Anshan, the co-defendant, had a small amount of personal theft, and all the stolen money and goods had been returned. At the same time, he voluntarily surrendered himself and truthfully confessed the crime to the public security organ, so it is understandable to punish him lightly.
According to the criminal law's interpretation of theft, individuals who steal public or private property in an amount of more than 30,000 yuan but less than 100,000 yuan are "extremely huge", while the corresponding provisions of China's criminal law are that they shall be sentenced to fixed-term imprisonment of more than 10 years or life imprisonment, and shall also be fined or confiscated. In this case, Xu Ting not only squandered a huge sum of money, but also absconded until he was arrested without mitigating circumstances. Therefore, there is nothing wrong with the court applying the prescribed maximum penalty, which is still within the statutory scope.
So, does stealing ATM machines constitute stealing financial institutions? Many citizens think that it is too harsh to regard ATM machines as financial institutions. "Isn't that a street full of financial institutions?" In this regard, Zhong Wendong believes that ATM machines should also be regarded as financial institutions in all aspects of property. Because the cash in ATM also comes from financial institutions, its property ownership belongs to financial institutions and can be regarded as an extension of the property of financial institutions. At the same time, ATM machines are owned and managed by financial institutions, and of course they are also an inseparable part of financial institutions.
Some people also said that they should not be convicted, and the ATM machine was furious. Who can blame a dollar for spitting a thousand dollars? The client should be acquitted.
The author has long studied economy, economic law and jurisprudence. Law is supreme, and law is the embodiment of the spirit of law. In this case, he is also a guest of CCTV. The author believes that the judgment of Guangzhou Intermediate People's Court seems to be sentencing according to law, but it is actually suspected of misreading the law. Readers should not be emotional. When a legal provision is used to explain the ambiguity of relevant cases, the most important way is to strengthen the rationality of law enforcers and seek a solution from the sacred legal spirit.
The author thinks that we should know and understand such a legal case from three aspects:
First, refer to similar cases abroad and learn from the trial principles of their courts.
The ATM fainted, and 1 yuan was exchanged for 1000 yuan. Although the total number of similar cases is accidental, it is indeed a small number.
Look at the newspaper reports in recent days:
1. According to media reports, on April 29th, 2004, the Shanghai Morning Post reported that the villagers in Wu Le Village, Northumberland, England, could not withdraw the double cash displayed on the screen because of the local ATM failure, and the villagers flocked to withdraw money. Finally, there was a long queue in front of the ATM, and about $65,000 in cash was emptied. In the end, the person in charge of the bank said that due to work mistakes, he did not intend to pursue the villagers who took more money.
2. "It's all because of the bank's ATM failure: an ATM in the British bank broke down, hundreds of people queued up to withdraw money, and Jamlom in China was sentenced to life." A post owner of Tianya Forum reprinted the report of British Daily Mail: An ATM of Royal Bank of Scotland broke down on June 265438+1October 2 1 day, 2006-it took 10 and spit out 20 pounds. So hundreds of people lined up to "take advantage of the bank" until the money in the ATM was taken out. Richard Sony, 24, said that he stood in line for an hour and a half and finally got close to the ATM, but all the money was taken out. He said, "I am very disappointed because some people just stood in line for 40 minutes and then withdrew all their deposits from all their bank cards and got double the money." We completely lost this great opportunity. But the atmosphere at the scene was very lively, and everyone was immersed in a carnival-like atmosphere. " According to the report, the bank said it would try to recover the overcharged money.
The whole report of the Daily Mail on this matter, "gives people a sense of comedy. In Britain, where the legal system is relatively sound, people regard it as a lucky arrival. "
The post owner suggested, "The same ATM machine error, the relationship between the Bank of England and the Bank of China and depositors is the relationship between the service industry and customers. Some customers used ATM errors to maliciously cash out more than the principal, and the British police did not intervene. In China, Jamlom became a criminal with life imprisonment? "
Some media introduced that the reporter found the English report at that time and confirmed the authenticity of the events described in the post. The reporter further searched and found that, in fact, it is not uncommon for customers to withdraw more money abroad due to ATM machine failure, and most of them will lead to a wave of queuing withdrawals. No matter cashier, bank or media, there is no moral discussion.
However, unlike the "Xu Ting case", most of these ATM machine errors were caused by bank staff misplacing banknotes with different denominations, such as putting 20-pound banknotes in a 10 box, which led to repeated withdrawals. The amount is relatively small, and there are many "people involved", so it is difficult for banks to recover all the money, and the judicial organs rarely intervene.
3. A newspaper reporter discovered an incident that happened in Coventry, England in 2003, which has many similarities with the "Xu Ting case", involving a huge amount of money and entering the judicial process, but the penalty is very different from the "Xu Ting case", only 1.5 years.
According to British media reports, in August 2002, the computer of a British bank (Coventry Construction Finance Cooperative) broke down, which caused its ATM to vomit for five days. No matter what password people enter, whether it is correct or not, the ATM will obediently spit out the money they need. During this period, some people even went back and forth for 20 times to withdraw thousands of pounds, and the general bank was taken away more than 6.5438+0 million pounds.
Joubert's family took 1344438+00000. When the police found them, they found a new car, a new sofa and some tickets to Jamaica. Joubert, 47, and his 20-year-old daughter were sentenced to 65,438+05 months in prison, while his 20-year-old son was sentenced to 65,438+02 months in prison. His 45-year-old wife postponed it for physical reasons.
Although she admitted taking money from the machine, Mrs. joubert was very indignant. "I'm shocked!" My grandson is only 1.5 years old, and his mother will live in prison 15 months because of the bank's mistake! ""Our family are ordinary hardworking people. This is just an extra gift. Who is not tempted? "Their defense lawyer Neil Williams believes that standing in front of such a machine is like standing in front of a candy store." It is hard for anyone to refuse to accept more. Another defender said, "This is a crime without victims, because banks can get compensation from insurance companies.".
To sum up foreign cases, there are several characteristics: First, ATM machines fail to pay more, and many people get extra benefits in the face of temptation. Secondly, many citizens regard this kind of case as a lucky arrival, a comedy, and think that people can't resist the temptation, so they have little responsibility. Third, most of them do not need criminal law adjustment, or the amount is very light.
Second, tracking the circumstances of the conviction of withdrawing the lawsuit, the author believes that there are ten suspense that cannot be misunderstood.
First, "theft" is malicious possession and subjective intention. But the parties involved in the crime have no subjective intention first. If you hadn't pressed an extra "0", the case might not have happened. Can "theft" be applied without subjective and intentional behavior and motivation? Is the so-called "legal fees" so "legal"?
Second, the parties involved use their own bank cards and passwords to withdraw money themselves. For cardholders, the money on the card is their own safe in the bank. I think this certainty can't be wrong. I believe everyone thinks so. The bank's related management negligence led to more money in this safe than the original. Holding his own key, he opened his safe and saw that the money was actually superfluous, knowing that someone else had made a mistake. Therefore, "if you don't take it for nothing, you will take it for nothing." When a person uses his own card and opens his own till, the manager puts in more money and takes away more money. What is this thing?
Third, temptation leads to crime, how to convict? The tempter is the bank, and the bank's mistakes make people take more money. How to define it? Is this a crime? As we know, in other cases, all cases caused by temptation are either not proved or the sentences are extremely light. For example, in order to measure whether an official takes bribes, a person is sent to pretend to give the official a gift for something, and the official receives the gift. Then, can the official be convicted of accepting bribes? In fact, the law does not recognize the result of this temptation, because the temptation comes first, and without this temptation, this fact does not exist. Without A, there is no B. The appearance of B is caused by the appearance of A. Is it correct to use temptation to guide people to "commit crimes" and thus cure "crimes"?
Fourth, the result is not the most important, but the nature is the most important. Jurisprudence holds that nature determines weight. Intentional homicide is a felony even if it is completely unsuccessful; Fighting with each other and killing each other by mistake will not be too severe. It is also a misdemeanor to kill someone because of careless driving. The party who committed the crime entered the door of his home and opened the safe of his home. The people in your bank put the money in the wrong place, and if they put too much, they took too much. So should this case be treated as a felony?
Fifth, the falsification of a similar proposition is very important. Then, there is a case where A goes to the market to purchase goods, and the other salesperson B regards 10 yuan submitted by A as 100 yuan. Every time he made a deal, he begged 90 yuan more. As a result, this person has been using 10 yuan to buy goods from the other party and bought 10 times. The shop assistant begged 900 yuan more, and A took it. From a legal point of view, it is "unjust enrichment". Does this require criminal law adjustment?
Sixth, is this an open act or a secret act? He "stole" his money box with his bank card and password, and left a withdrawal record in the bank. And "stealing" must be a secret act, which should be an act of not using your own card and not showing your identity.
Seventh, a cashier, assuming that there is 200,000 yuan on his card, doesn't know that the withdrawal bank has not actually deducted the full amount. He did raise 6.5438+0.7 million yuan, but he didn't have the habit of checking the balance after withdrawing money. There is a real case. A friend of mine always has hundreds of thousands on his card. After withdrawing money, he never checks the balance, just keeps going in and taking it out when necessary. If he is a party to the crime, can we say that he "stole" a financial institution? Then, isn't it ridiculous that a kind cashier can commit life imprisonment?
Eighth, there are "unjust enrichment" clauses in the civil law. Unjust enrichment is immoral and needs to be returned, but it does not constitute a crime. It refers to taking advantage of your own mistakes when you know it's not your own. According to the property law, public and private property are equal. Is it because the money of financial institutions will be "valuable" than the money of ordinary people and will be severely sentenced? Is this in line with the spirit of the property law?
Ninth, hold your own bank card and enter your own deposit box to realize the function of deposit management. In the process of management, I found that there was extra money in my cash box. If the bank's records are relatively sound, then the extra money will eventually come out. Cardholders are realizing their own safe deposit box management function. Do they use management positions to occupy public and private property? What kind of "crime" is more like what criminals do?
Tenth, the actor confessed to his colleagues that he wanted to "get something for nothing", and as a result, he went to "get it" with his colleagues, and * * * got "6.5438+0.7 million yuan". Then, is "6.5438+0.7 million yuan" a huge sum? Does this happen by accident or often? If it is accidental, will it lead to the illusion of society? Is there a result that "the death of a felony is not enough to restore social order, and the death of a felony is not enough to deter crime"? Can this kind of case really harm society?
Three, when the case can not be accurately sentenced in the existing laws and regulations, it should be interpreted with the recognized spirit of law and appropriate sentencing.
All laws and regulations are determined in accordance with the spirit of jurisprudence. Law is the embodiment of legal spirit. Studying the first-instance judgment of Guangzhou Intermediate People's Court, the author thinks that there are six legal spirits that can guide the second instance of the case.
First, the highest principle of jurisprudence is to punish crimes through habits and restore social order. The ATM case involved in Xu Ting is obviously a very rare accident, and there is no prerequisite for restoring social order. This case has guided millions of people to learn legal provisions and understand the spirit of the rule of law. We should see the special significance of this case in the process of social legal system.
Second, the duty of law is to educate people and regulate their behavior, and punishment is never an end. The key is whether the purpose of guidance and standardization can be achieved.
Third, when criminal law and civil law can be applied to a case at the same time, civil law should be used to solve the problem.
Fourth, when a case can be convicted or innocent, it should be innocent and far from guilty.
Fifth, when a case can be given a lighter sentence or a heavier sentence, a lighter sentence is appropriate.
Sixth, in the trial of a case, the fraud system is the benchmark to safeguard the legitimate rights and interests of the parties. We should try our best to put ourselves in the other's shoes, so as to make our judgment more rational and closer to the legislative principles.
The author hopes that the second-instance judgment of Guangzhou Intermediate People's Court can further embody these sacred legal spirits.
(The writer is the vice chairman of China Economic Masters Forum, the executive director of China Enterprise Reform and Development Research Association, a researcher of China Academy of Management Sciences, and an economic and legal researcher. )
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