According to the provisions of the Lawyers Law and the Criminal Procedure Law, Guo Xiangdong, a lawyer of Beijing Wanshang Qin Tian Law Firm, accepted the entrustment as the defender of Xu Ting, the defendant in this case, and put forward the following defense opinions according to the facts and laws:
Every time Xu Ting withdraws money, Guangzhou Commercial Bank has the fact of delivery.
The retrial judgment ignores the important fact that Guangzhou Commercial Bank has a delivery bank.
Delivery banks can steal things.
In this case, whether the money delivered by ATM to Xu Ting belongs to the fact of bank delivery is controversial.
Notice of the People's Bank of China on Printing and Distributing the Industry Standard of "Application Specification for Bank Magnetic stripe Card ATMs"
5.2.4 After the transaction is successful, the ATM will count the banknotes.
Count the ATM-spit cash withdrawal display number 1 1:
┌—————————————————┐
Please withdraw cash.
Please take your cash.
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Guangzhou Commercial Bank ATM spits out cash and displays the above screen at the same time. Does it constitute a legal delivery answer? What is certain is that both the Electronic Signature Law and the Guangdong Electronic Transaction Regulations stipulate that the automatic transaction system of the parties will automatically send out information and inform the cardholders to withdraw cash. Please take good care of your cash, which is enough for legal delivery.
The facts are clear and the evidence is full of denial.
The court of second instance shall confirm
Second, the retrial judgment found that the evidence was wrong.
1. The relevant evidence in this case belongs to electronic evidence. If the authenticity of the data message is not examined as evidence in accordance with Article 8 of the Electronic Signature Law, the following factors should be considered: (1) the reliability of the method of generating, storing or transmitting the data message; (2) Reliability of methods for maintaining content integrity; (3) the reliability of the method of identifying the sender; (IV) Relevant factors The People's Bank of China has promulgated the "Guidelines for Electronic Payment (No.1)". All access to electronic payment transaction data must be registered, and it is necessary to ensure that the registration is tampered with. No matter whether the retrial judgment or the second-instance judgment is reviewed according to the above requirements, it is easy to find that there is an obvious legal basis.
2. Retrial Evidence 8 records that Xu Ting's withdrawal request is RMB 65,438+0,000.00 yuan each time, and relevant evidence proves that the host computer accepts data 65,438+0 yuan's request to show that the data message has been modified. How to use the modified data message as electronic evidence?
3. Guangdong Higher People's Court has collected relevant evidence again. The customer's notification time arrives at the site, the work completion time is recorded as 2006-4-2 1, and the daily account downtime is recorded as 2006- 1-2 1. The error is very obvious, and it can be concluded that the error conforms to the objective truth of the evidence.
Third, Xu Tingxing constitutes a crime.
Article 264 of the Criminal Law shall apply to the retrial judgment, and the defendant Xu Ting shall be found guilty of theft by applicable law.
According to Article 264 of the Criminal Law and the provisions of the judicial interpretation of the High Court, it is obviously against the logic of repeated definition to explain that some bank personnel have repeatedly stolen public and private property by stealing purpose, illegal possession, secretly stealing public and private property or repeatedly stealing public and private property.
However, the NPC Law Committee explained that theft refers to illegal possession of public and private property in a large amount or repeated theft, which is more scientific and accurate than the interpretation of the High Court.
The judicial interpretation of the High Court does not define what secret theft is.
Interpretation of NPC Law Committee: Stealing pedestrians' secrets adopts methods that are easy to be discovered by property owners, custodians or others, illegally occupying public and private property, sliding doors, picking locks, digging holes over walls, and sneaking into other people's rooms to steal property; Cut bags in public places, etc.
Lawmakers also clearly pointed out the important characteristics of secret theft and distinguished the main signs of the crime of infringing property.
According to the above provisions, the defender believes that Xu Tingxing constitutes theft.
Moreover, Xu Tingxing also constitutes an objective element of theft, and this case is also controversial about whether it belongs to secret theft.
Interpretation of retrial judgment and related judgments: banks should know that machines know, regardless of confessions. Before the incident, Xu Ting's subjective analysis and understanding also changed. Xu Ting's subjective judgment on this incident is very rough. Just like the various opinions caused by the society in this case, some people think that the bank knows and the machine knows what the bank knows. Judging from the overall situation of this case, Xu Ting's confession is only a subjective judgment. The court of first instance changed the subjective judgment of this kind of thing. Obviously, the subjective state of the parties at that time and before the incident judged that Xu Ting met the objective requirements of stealing secrets, which was even more wrong
The characteristics of theft also determine whether it belongs to the standard of theft;
1. Pedestrians have subjective intentions to let people know. 2. Pedestrians perform known behaviors. 3. Theft is mainly aimed at the property owner or holder. 4. Theft is mainly for the purpose of implementation. 5. Theft also objectively shows that violence is not used when acquiring property without the consent or delivery of the property owner or holder.
According to the above characteristics, Xu Ting did not let others know at the time of the crime. What is more obvious is that Xu Ting has the characteristics of stealing secrets. Xu Ting's acquisition through the delivery of Guangzhou Commercial Bank, the property owner, is not a direct acquisition, but more a secret and theft.
That is to say, judging by the common sense of daily life, there is no secret between Xu Tingxing and any of us in setting up a public trading system for public trading in public.
Second, Xu Tingxing lacks the objective elements of theft.
The object of theft is the ownership of public and private property. When the property is not owned by the owner, it infringes on the possessor's right of possession. Ownership includes the right of disposal. At that time, Guangzhou Commercial Bank paid money to Xu Ting through its automatic trading system and exercised its ownership. When the bank made the payment, Xu Ting did not violate the bank's right to dispose in any way. Banks fully authorize themselves or their personnel to set up automatic trading procedures to dispose of their property.
Xu Ting Bank fully exercised its ownership and explicitly told Xu Ting to withdraw money through its automatic trading system. Therefore, Xu Ting did not infringe upon the right of Guangzhou Commercial Bank to dispose of its own property at that time, nor did he infringe upon the ownership of Guangzhou Commercial Bank at that time. Therefore, Hangzhou constitutes an objective element of theft.
In this sense, Xu Ting has both objective elements of theft and objective elements of theft.
Therefore, the defender believes that Xu Tingxing constitutes theft.
Third, this case belongs to e-commerce, and the electronic transaction law stipulates that banks should be responsible for the automatic transactions of their own trading systems, and even more responsible for the wrong transactions of their own systems.
Article 9 of People's Republic of China (PRC) Electronic Signature Law stipulates that the sender's information system automatically sends data messages, which is deemed to be sent by the sender.
NPC Law Committee explained this point, and everyone understood the meaning of this article more accurately.
In the second case of this paper, the sender's information system automatically sends the data message. "Electronic Commerce Law" is also called "automatic transaction". Information system is also called "electronic agent". Electronic data interchange (EDI) is a common situation. The example of electronic data exchange between our retailers and their upstream suppliers illustrates this situation. When the inventory of a product is less than a certain quantity, the computer automatically generates an order and sends it to the supplier's information system. Because of the automatic management, the order is accepted by the information system of the direct supplier. No one intervened in this example. Or is the retailer responsible for the automatic order of the machine? The answer must be because the computer can only run according to the instructions and information of the programmer, and the computer controller is responsible for its automatic transaction.
Article 10 of the Regulations of Guangdong Province on Electronic Transactions adopts the information system set up by the parties themselves to automatically send or automatically reply to the offer or acceptance, and records the expression of intention of the parties to the contract electronically.
From the relevant evidence in this case, we can see that before Xu Ting withdrew money, the interface displayed by the ATM of Guangzhou Commercial Bank was, Please take your cash. According to the provisions of the Electronic Signature Law and the Regulations of Guangdong Province on Electronic Transactions, this money protrudes from the speculation. At the same time, Guangzhou Commercial Bank has made it clear that the ownership of the money has been transferred to the cardholder and paid by Guangzhou Commercial Bank, a withdrawal bank in Xu Ting.
Popular point: Xu Ting's withdrawal before the delivery of Guangshang Bank once again confirms the defender's view that Xu Ting constitutes theft.
Fourthly, the only standard for judging whether the abnormal use of credit cards constitutes a crime is Article 194 of the Criminal Law.
According to this article, the theft of credit cards constitutes theft, forgery, forgery, the use of invalid credit cards, malicious overdraft and so on. , which constitutes credit card fraud.
In this case, the use of a credit card bank in Xu Ting obviously constitutes a crime in accordance with the regulations, and it can only be analogized if it is judged that the use of a credit card constitutes a crime other than that stipulated in this article.
According to the provisions, except that the use of stolen credit cards constitutes theft, all banks that use credit cards to obtain illegal benefits only cheat two banks.
The article explains that the criminal law uses credit cards in addition to theft, and both parties can do the same business, which can only constitute unilateral theft.
It is absurd to judge that Xu Ting constitutes theft, and stealing credit cards constitutes theft;
A thief using his own credit card can also constitute theft.
It also caused an absurd fact that withdrawing more money with one's own credit card constitutes theft and overdraft with one's own credit card constitutes fraud.
My conclusion is that Xu Tingxing constitutes theft, and there is no provision for this crime in the criminal law. According to the principle of legality in criminal law, Xu Tingxing is a crime.
The law is not omnipotent, even if it is not expressly stipulated in the law, a crime can be identified. The core issue brought to us by Xu Ting case is the value choice at the judicial level when there is a value conflict between social harmfulness and legality. There has been a tendency to discuss this issue in theoretical circles, and it is clear that this crime should be punished according to law.
Excessive judicial activity is more harmful to society than judicial incompetence.
Fourth, Xu Tingxing belongs to the field of e-commerce. Electronic payment errors belong to civil disputes.
According to the Guidelines for Electronic Payment, electronic payment means that a unit or individual sends a payment instruction directly or by an authorized person through an electronic terminal to realize monetary payment. The types of electronic payment of a fund transfer bank can be divided into online payment, electronic payment, mobile payment, point-of-sale terminal transaction, ATM transaction and electronic payment.
The NPC Standing Committee's interpretation of the provisions of the Criminal Law of People's Republic of China (PRC) on credit cards stipulates that credit cards refer to electronic payment cards issued by commercial banks or their financial institutions with all or part of the functions of consumer payment, credit loans, transfer settlement, cash deposit and withdrawal, etc.
In this case, the ATM withdrawal bank in Xu Ting makes electronic payment for the above ATM transactions.
Chapter V Mishandling of Terms Article 42 If the electronic payment instruction cannot be delivered within the agreed time due to the bank's own system, internal control system or the third-party service provider, or the electronic payment instruction is tampered with, the bank shall compensate the customer as agreed, and the bank shall compensate the customer for the losses caused by the third-party service provider, and then recover the compensation according to the agreement with the third-party service provider.
This case is due to the institutional reasons of Guangzhou Commercial Bank. Xu Ting's electronic payment instruction was tampered with 1 1,000 yuan and submitted to the host computer, resulting in an electronic payment error. The forged computer system tampered with the payment instruction and sent the real transaction in Xu Ting to the host computer. The host computer will automatically reject the situation and it will happen.
According to the above regulations, the security of the banking system causes losses to customers, and banks bear civil liability for compensation for losses. The security of the banking system causes its own losses, and customers bear full responsibility and even criminal responsibility. Where is the fairness and justice of law reflected?
Article 89 of the Measures for the Administration of Electronic Banking stipulates that if a financial institution provides electronic banking services, it shall bear corresponding responsibilities for losses caused by potential safety hazards in the electronic banking system, illegal operation within the financial institution or non-customer reasons. According to this article, Guangzhou Commercial Bank shall bear corresponding responsibilities for its own losses.
A clearer division of responsibilities is based on Article 2 15 of the Payment and Settlement Measures, which stipulates that the payer and his agent shall bear the responsibility for malicious or gross negligence payment.
Guangzhou Commercial Bank clearly knew that it should bear the responsibility, and the wicked first sued their thieves and drew the court's attention to the details. When this case was put on file, the Economic Investigation Department of Tianhe Branch of Guangzhou Public Security Bureau basically put on file, but it knew financial business and specialized in public security cases. The village police station of Guangzhou Tianhe Public Security Bureau accepted the case, which was accepted as a public security case because the village police station had a better understanding of financial business and e-commerce. From then on, the wrong sedan chair was wrong and wrong again.
When we accused Xu Ting of violating the principle of honesty and credit while knowing that there was a computer error, I found that electronic transactions in the field of e-commerce could challenge the honesty and credit of our traditional civil and commercial law. In addition to the transactions between people and automatic trading systems today, more transactions between automatic trading systems are called man-machine transactions. In this case, we accused Xu Ting of violating honesty and credit when he knew that the automatic trading system was wrong. The principle is to let Taiwan Province's machine error be responsible for the machine-to-machine transaction, and a similar situation occurred in this case. Can we blame one machine on another? The answer is obvious. In the future, electronic trading business rules, machine-to-machine trading rules and other rules can be formulated. Whether it is a machine-to-machine trading desk or a machine-to-machine trading desk, human-machine traders can also be required to be responsible for machine errors. This problem has been tested by history.
Foreign countries have formulated the basic principles of e-commerce law to solve the legal problems of electronic automatic trading: the data message sent by the automatic trading system should belong to the initiator of the automatic trading procedure, and the information sent by the sender will be denied without self-examination.
From the perspective of development, the mistake of electronic payment is interpreted as theft judgment. Xu Ting should bear the criminal responsibility for theft. With the development of e-commerce, people can better understand the truth and seriousness of the wrong judgment against the historical trend.
Verb (abbreviation of verb) thinking about this case
First of all, can punishing Xu Ting correct the programmer's mistakes?
The fundamental measure to solve the Xu Ting case and the similar Xu Ting case is the rules formulated by financial supervision and legislation to ensure the safety of computer systems, so as to avoid the occurrence of this case and similar cases. However, the judicial organs have adopted the method of punishing Xu Ting to solve all kinds of computer system errors beyond ordinary people's imagination throughout the country. How can He Peng and Tang brothers punish?
When the media interviewed Guangdian Express Company, Guangdian Express Company made it clear that it would punish the relevant responsible personnel for this.
It is completely in line with what Mr. Xu said, guilty, protecting banks from making mistakes and conniving at financial risks.
Second, the conviction of Xu Ting broke the financial risk correction mechanism in the financial system.
Article 92 of the Measures for the Administration of Electronic Banking: Financial institutions violate prudent business rules when conducting electronic banking, which still constitutes illegal acts, resulting in greater security risks in the electronic banking system; (3) Ordering to adjust the person in charge of the electronic banking management department. Has the person in charge of electronics of Guangzhou Commercial Bank been adjusted? no
Trial Measures for Evaluation of Internal Control of Commercial Banks Article 54 If the evaluated institution has a major liability accident during the evaluation period, it will be downgraded on the basis of the above rating. Major accidents include: (3) major impact or loss caused by business system failure. Has Guangzhou Commercial Bank been downgraded? We didn't watch it either.
Convicting Xu Ting completely broke the risk prevention system within the financial system, connived at the procedure, set up personnel to be responsible for the bank to convict customers through the court, and pushed its own civil and administrative responsibilities to the ground. What role should the judiciary play?
Thirdly, in the future e-commerce, we will have a machine-to-machine similar event. What is the explanation of whether the traditional civil and commercial law still applies?
In June 2007, the National Development and Reform Commission and the State Council Press Office jointly formulated the Tenth Five-Year Plan for the Development of E-commerce, both of which expounded the importance of developing e-commerce in China, and explicitly requested to publicize and popularize the knowledge of e-commerce to the society, implement the Electronic Signature Law and other laws and regulations, and create a good legal environment for the development of e-commerce.
In February 2008, Wang Yang, secretary of Guangdong Provincial Party Committee, personally went to Hangzhou to meet with Jack Ma, Chairman of the Board of Directors of Alibaba, a leading domestic e-commerce enterprise, and invited Jack Ma to Guangdong to develop e-commerce and solve some difficulties faced by small enterprises in Guangdong Province. The Economic and Trade Bureau of Foshan Municipal Government signed a strategic cooperation agreement to establish a key base for e-commerce development in South China in Foshan, Guangdong. Recently, the TOP 100 list of e-commerce websites in China was announced, and 1 1 Guangdong industry websites such as Tianxia gas station and China leather goods network were selected as the top 100 media to evaluate the new economic model of e-commerce, and Guangdong, a major economic province, is recovering.
The Guangdong Provincial Party Committee and the provincial government are vigorously promoting the development of e-commerce. At the same time, the e-commerce dispute in the Xu Ting incident was interpreted as theft. Unfortunately, I hope that the court of second instance can see clearly how to make e-commerce return to the forefront of the country, and the judicial field can set an example for the national courts. The Guangdong Provincial Party Committee and the provincial government vigorously advocate the development of a new economic model of e-commerce and create a good legal environment.
It is appropriate for anyone and any organization to blame our compatriots too much when this country is in trouble. We sincerely hope that the judicial system can treat our people well and tolerate our compatriots.