Reporter He Lidan Zhang Yiqing
On April 2, 2006/KLOC-0, an automatic teller machine (ATM) located at Xipingyun Road, Huangpu Avenue, Tianhe District, Guangzhou was once out of order due to the system upgrade of Guangdian Yuntong Financial Electronics Co., Ltd. ..
At about 10 that night, Xu Ting, a 24-year-old boy from Xiangfen County, Linfen City, Shanxi Province, found that he had withdrawn 1 000 yuan from the ATM before deducting1yuan from his bank card. He wanted to take the money away again, but he still took 1000 yuan and deducted 1 yuan ... The incredible Xu Ting used his balance of 65,438.
After being discovered by the bank, Xu Ting absconded with the money for a year. A year later, he was arrested by the police at Baoji Railway Station in Shaanxi.
Recently, after the first trial, the Guangzhou Intermediate People's Court of Guangdong Province characterized Xu Ting's case as "theft of financial institutions with a huge amount" and sentenced Xu Ting to "life imprisonment, deprivation of political rights for life, and confiscation of all personal property".
After the verdict of Xu Ting case, it caused fierce controversy, and 90% of netizens thought that Xu Ting's sentence was too heavy. Our reporter also learned that Xu Ting has filed an appeal, but the date of the second trial has not yet been set.
"My son is afraid of bringing trouble to his family."
"My child has a good personality, but he is stronger. To tell the truth, he doesn't value money very much. " 65438+February 2 1, Xu's father told this reporter. Xu Ting is from Guojiazhuang, Xiangfen County. After graduating from high school, he studied marketing in a junior college for a year and a half, then dropped out of school and started selling motorcycles in Linfen for more than half a year. At that time, Xu Ting's monthly salary was more than 1000 yuan, which was "quite good in the local area".
Because his girlfriend went to Guangzhou, Xu Ting started to work in Guangzhou on June 5438+1 October1. In Guangzhou, Xu Ting didn't meet a good opportunity. Introduced by a friend, Xu Ting first worked as a waiter in a hotel in Guangzhou, and soon worked as a security guard in the Guangdong Higher People's Court. In Xu's view, his salary at that time was only "seven or eight hundred yuan a month, which is not as good as it is now.
Xu Cai Liang recalled that Xu Ting had confessed in court that when he found that the ATM was wrong, "he thought it would be better to take some money first and wait until the bank staff came to ask for it." Xu Cai Liang emphasized that Xu Ting "didn't leave immediately the next day after he took the money, but went to work normally. On the third day, he stayed in the unit for a day, and no one looked for him. "
But when the bank found the problem and came to Xu Ting, Xu Ting chose to escape. The first-instance judgment of Guangzhou Intermediate People's Court also found that Xu Ting's "money was squandered".
"I don't approve of saying that my children are' profligate'," said Xu Cai Liang. According to his description, the 6.5438+0.75 million yuan that Ting took was spent like this: 50,000 yuan was stolen on the train back to Shaanxi, "and then I was afraid to go home. He used the remaining money to open an Internet cafe in Taiyuan with another friend, with an investment of 654.38+05. He also bought more than 5000 yuan lottery tickets, and he also lost money; Later, there were more than 20 thousand left He always has to pay for living expenses and renting a house this year. "
Last year, Xu Ting was admitted by an enterprise in Taiyuan and sent to Baoji, Shaanxi for training. Soon after, he was arrested at Baoji Railway Station.
Xu recalled that in the past year, he stayed in Taiyuan, never went home, and never remitted money to his family. He just called home several times and said to his family every time, "It's okay, don't worry about me."
Once, my classmate told Xu that he had arrived in Linfen, but in the end he didn't go home and his father and son couldn't meet. Xu analyzed that his son was "afraid of getting into trouble at home".
Xu Ting is a family of four. Both parents used to work in local mines. Now Xu Ting's mother's working relationship is gone. She did odd jobs, and Xu, 50, was laid off. She can only do odd jobs. The monthly income of the family is about 1 1,000 yuan. Xu Ting also has a 2 1 year-old sister who is still studying for the college entrance examination this year.
Theft? Crime of embezzlement?
The court's first-instance judgment against Xu Ting found that Xu Ting "stole financial institutions for the purpose of illegal possession, and the amount was extremely huge, which constituted theft".
One detail is that Xu Ting once told his colleague Guo Anshan about his "adventure". Guo Anshan got a fake ID card and a new card in the bank, and earned 6.5438+0.8 million yuan. Guo Anshan surrendered himself to the police in June165438+1October last year and returned the stolen money. The court sentenced Guo to one year's imprisonment for theft and fined him 1000 yuan. The bank video and camera screenshots of Xu Ting and Guo Anshan at the ATM of Yunping Road Commercial Bank that night confirmed their withdrawal behavior.
At present, the core of the dispute is whether Xu Ting's behavior belongs to "embezzlement" or "theft".
According to the law, the so-called "crime of embezzlement" refers to the act of illegally taking for yourself the property, forgetting things or buried objects given to you by others for the purpose of illegal possession, and refusing to return them in a large amount. The so-called "theft" refers to the act of stealing a large amount of public and private property secretly or stealing public and private property many times for the purpose of illegal possession.
Of course, the punishment for theft is more serious. 1March, 998, China began to implement the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Theft Cases, stipulating that individuals who steal public or private property with a value of more than RMB 30,000 to RMB 100,000 are "extremely huge". According to Article 264 of China's Criminal Law, anyone who has one of the following circumstances shall be sentenced to life imprisonment or death, and his property shall be confiscated, one of which is "stealing a financial institution, with a particularly huge amount".
Wu Yichun, Xu Ting's defense lawyer and lawyer of Guangdong Jinglun Law Firm, thinks that Xu Ting is guilty of "corruption". He told this reporter that Xu Ting's legal awareness is obviously not high. In Wu Yichun's view, the distinctive feature of theft is "secret stealing", but Xu Ting used his own bank card to withdraw money, and his identity has been mastered by the bank. Its behavior does not conform to the characteristics of "stealing secrets".
Wu Yichun participated in Xu Ting's defense in the first instance. He admitted that even he didn't expect that Xu Ting's case would be "sentenced so severely" because "the bank made some mistakes and the punishment for Xu Ting should be reduced", but in the end, the court found that the bank was not at fault and convicted Xu Ting of theft.
"It can't be said that only banks are allowed to deduct more money and apologize to customers afterwards, but customers are not allowed to make mistakes. This is equivalent to. " Wu Yichun believes that according to the sentencing standard of stealing financial institutions and the amount is particularly huge, the starting point is life imprisonment, and even death penalty can be imposed. "If Xu Ting is convicted of embezzlement, the sentence will definitely be much lighter, usually three to seven years."
Li Haibo, a lawyer of Beijing Hao Ying Law Firm, believes that Xu Ting's behavior belongs to "theft". "Xu Ting knows that his card only has 1.7 million yuan, and he knows that this 1.7 million yuan belongs to the bank. Although his behavior is different from stealing money from other people's bags, he actually took advantage of the procedural error of the ATM, took the money by illegal means and ran away. His malicious withdrawal behavior subjectively has the purpose of illegal possession. "
However, due to the accidental occurrence of this incident, Li Haibo said that the loopholes in the bank were prior and there was administrative responsibility. The network operation company (Radio and Television Express Company) is also responsible. Xu Ting's case is not harmful to society and should be dealt with lightly. This is like "if you find that there is a lot of money in your bank account for no reason, as long as you don't use it and return it to the bank, you can be exempted from responsibility."
In Li Haibo's view, theft can be divided into several types. Financial institutions are singled out, and those who steal financial institutions will be sentenced to life imprisonment or death. "This' huge amount' should be reconsidered according to social development." Li Haibo emphasized that sentencing to life imprisonment for theft with a particularly huge amount follows the judicial interpretation of theft in the Supreme People's Court (1998), but the amount determined by the judicial interpretation of 1998 is no longer in line with the current social and economic development situation, and "there is a problem with the sentencing of law enforcers".
Sentencing dispute
Wang Lin, an associate professor at the Law School of Hainan University, wrote that Yu Zhendong's embezzlement and misappropriation case also occurred in Guangdong, involving a total amount of 482 million US dollars. I was found guilty of corruption by the court, totaling about 67.77 million US dollars, about 6.5438+28 million Hong Kong dollars. The total amount of misappropriation of public funds is about 65.438+0.25 billion US dollars, about 273 million RMB and 20 million Hong Kong dollars. However, under the combined punishment of several crimes, Yu Zhendong was only sentenced to 65.438+02 years in prison. "Comparing the two cases, the ending can be described as a world of difference."
This article is like a stone stirring up a thousand waves. Wu Yichun said that the starting penalties for several crimes of the same level, such as theft and fraud, have not changed much in the more than 20 years since the reform and opening up; However, for more than 20 years, the conviction amount of corruption and bribery crimes has been relaxed every year. "This is unfair in itself. For example, in the case I contacted, in 1989, a person who embezzles more than 100,000 yuan may be sentenced to death; But now accepting bribes of 200,000 yuan or 1 10,000 yuan will not be sentenced to death at all. "
In Wu Yichun's view, corruption and bribery crimes are more harmful to society, which shows that "there are some problems worthy of consideration in our legal theory, such as whether our original legislation placed different interest groups at a high level?"
Li Haibo, a lawyer in Beijing, believes that theft is less harmful to society than corruption and bribery. "Some corrupt officials are greedy for a lot of money, and many have been sentenced to more than ten years. Moreover, corruption and bribery are difficult to detect, but there is a camera video with a bank card to withdraw money, and it will definitely be caught. "
Many netizens cited similar incidents in foreign countries that used ATM loopholes to withdraw money. For example, in an incident similar to the Xu Ting case in Britain, a family took10.3 million pounds by taking advantage of an ATM loophole and was sentenced to imprisonment ranging from 12 months to 15 months respectively.
Li Haibo believes that these cases are "not comparable" because different countries have different legal systems and different evaluation criteria. He said that the fierce reaction of public opinion is a "double-edged sword". "If everyone does not express their opinions, the operation of the whole case will be carried out within the court. Without supervision, it is likely that the original judgment will be upheld. "
A widely circulated saying is that according to the "police trap theory" in criminal proceedings, the disorder of ATM machines induces a normal citizen to have a temporary criminal intention. And human nature, often can't stand such temptation and test. Xu said that in this case, 9 people in 10 will be tempted.
Xu kept saying that they wanted to negotiate with the bank, but "the bank refused to negotiate"; Now that his son was sentenced to life imprisonment in the first instance, Xu can only repeatedly emphasize, "As long as the money can be returned to the bank, won't it be okay?" We didn't expect to get such a heavy sentence ... "
Some enthusiastic netizens even announced the complaint telephone numbers of Guangdong Intermediate People's Court and Guangzhou Commercial Bank, calling on netizens to dial in turn. However, as of press time, Guangzhou Commercial Bank has maintained a consistent silence on this matter.