Xu Ting, a young security guard, went to the ATM of a commercial bank in Xipingyun Road, Huangpu Avenue. During the withdrawal process, he found that there was an error in the ATM system. He wanted to withdraw 100 yuan, and the ATM paid 1000 yuan, but only 1 yuan was deducted from the bank card deposit account. So, Xu Ting used his debit card to continuously withdraw 54,000 yuan. When Xu Ting's companion Guo Anshan learned about it that night, they made frequent withdrawals. After Guo returned to his residence and took the debit card, he used the bank card to withdraw 16000 yuan again and left the scene. At 0: 00 am on April 22, the two returned to the above location for the third time. This time, Xu Ting withdrew more than 654.38+10,000 yuan, plus the previous two withdrawals totaled1750,000 yuan. In court, the focus of the dispute between the prosecution and the defense lies in the characterization of the charges in this case. The defender argued that the bank was responsible for the ATM error. Xu Ting didn't have the subjective motive of intentional crime from the beginning, which only constituted unjust enrichment in civil law, because he didn't have the intention of secretly stealing subjectively, but deliberately occupied other people's property and committed the crime of embezzlement, and should not be convicted of theft. The public prosecution agency believes that theft has the characteristics of secret theft. Xu Ting withdrew money from the bank many times and absconded with the money knowing that there was something wrong with the ATM. The amount of theft is large, which constitutes theft. If he doesn't know that the ATM machine is out of order, resulting in more unexpected wealth on the card, it only constitutes unjust enrichment in civil law, because he has no intention of stealing secrets subjectively, so he can compensate for the extra amount. However, Xu Ting did not refund the money after knowing the situation.
Finally, the Guangzhou Intermediate People's Court ruled in the first instance that the defendant Xu Ting, for the purpose of illegal possession, and his accomplices used secret means to steal financial institutions, and the amount was extremely huge, which constituted theft. Sentenced to life imprisonment, deprived of political rights for life, and confiscated all personal property. In this regard, Xu Ting's defense lawyer objected. He said that the mistake of the ATM was the bank's fault. In addition, the bank had enough time to recover the money, but it missed it because of the weekend. Therefore, this 6.5438+0.75 million yuan can be regarded as "forgetfulness", and Xu Ting's resignation only constitutes a crime of embezzlement. On March 3rd, 2008, the second trial of Guangzhou Intermediate People's Court was held.
The defendant Xu Ting was convicted of theft, and the amount was extremely huge. According to the law, the penalty of "life imprisonment or death penalty with confiscation of property" should have been applied. However, in view of Xu Ting's criminal intention after discovering the abnormality of the bank ATM, he used the method of illegally stealing the operating funds of financial institutions by holding cards, and his behavior was different from the crime of stealing financial institutions by premeditated or destructive means; Judging from the contingency of crime, the subjective malignancy of Xu Ting's crime is not great. According to the specific criminal facts and circumstances of this case and the degree of harm to society, Xu Ting was finally found guilty of theft, sentenced to five years' imprisonment, fined 20,000 yuan, recovered Xu Ting's criminal gains of 173826 yuan and returned to the injured unit. After the verdict was pronounced in the second instance, the Guangzhou Intermediate People's Court held a special press conference. President Gan Zhengpei, the second court of criminal trial, gave detailed answers to several major issues of public concern in combination with the contents of the judgment. Gan Zhengpei first pointed out that although Xu Ting did not steal financial institutions by premeditated or destructive means, ATM machines are the equipment for banks to provide self-service financial services to customers, and the funds stored in the machines are the operating funds of financial institutions. Therefore, Xu Ting's theft of ATM funds belongs to "theft of financial institutions" according to law. According to the criminal law, the minimum statutory penalty for the crime of stealing financial institutions is life imprisonment, but the retrial judgment sentenced Xu Ting below the statutory penalty, which was very confusing. In this regard, Gan Zhengpei said that according to the specific facts of the crime, the circumstances of the crime and the degree of harm to society, it is still not in line with the principle of adapting crime to punishment to be sentenced to life imprisonment on the basis of the statutory sentencing range. Therefore, according to the special circumstances of the case, with the approval of the Supreme People's Court, he was sentenced to five years' imprisonment below the statutory penalty. At 3: 55 am on August 10, Xu Ting got off the train and returned to his hometown in Linfen. So far, he has left his hometown for more than three years. Back home, Xu Ting's parents showed two completely different attitudes. My father insisted on innocent mistakes and actively expressed his views through the media, while my mother kept a low profile. She has put aside right and wrong, the only worry is that her son was sent back to prison for saying the wrong thing, and Xu Ting's smile has been hanging on her face. In his eyes, a new life has begun.
The first thing after getting off the bus is to hug my mother.
At 3: 55 am on August 1 Sunday, Xu Ting got off the train and returned to his hometown in Linfen. So far, he has left his hometown for more than three years. At the exit, his relatives and friends were filled with eight cars. As soon as he got out of the platform, his mother ran over and hugged him and missed his son. Xu Ting patted her on the back to comfort her, but her mother was in tears and didn't know what to say.
Then relatives and friends took Xu Ting back to a new home he had never seen before. It turned out that a year ago, his family moved from the old house to the new house. Hearing that he was going home, his father promised to arrange the biggest room for him.
Mother: I want my son to keep a low profile.
After learning that she was going home, Xu's mother was so excited that she couldn't sleep for two nights. Knowing that her son likes to eat jiaozi best, she bought a handful of green onions the day before yesterday, and she was very busy.
However, in the face of the attitude of the media, she is very low-key.
"The child is too tired. I just want him to be quiet. As for the rest, I don't want anything. Just come back and let the rest go. "
In fact, as early as the reporter's interview, Xu's mother began to worry, and even called the lawyer and three times. On the phone, my mother first asked the lawyer how Xu Ting was doing. The lawyer said that she was in good spirits and much more stable. Later, my mother told Xu Ting, "Don't be interviewed by the media. If you say something wrong, it will be troublesome to be brought back to prison. " Xu Ting replied at the time: "Let it be."
In the mother's mind, right and wrong have long been put aside, and the only worry is that her son will be sent back to prison. "Husband is too real, as long as the child can come back, it is better than anything."
Father: "I think he spent three years in prison."
Xu was busy greeting the media all day and invited the media to a small restaurant next to her home for dinner at noon. Compared with Xu's mother's low profile, Xu is very enthusiastic and willing to be interviewed by the media. He said that he has a deep gratitude complex for the media. "If there is no media that dares to speak fair, the court cannot change the sentence. I hope that the state and the court can give an explanation to the whole society. "
Xu said, "I know his mother is afraid of saying the wrong thing, and Xu Ting has been locked up again, but I am a person who sticks to the truth, and my point of view has never changed, even if he is wrong, he is innocent. It is normal for Xu Ting to want freedom, but he should not pay the fine. Giving means complete repentance.
While I was away, his mother secretly handed in the money. He confessed? What can he know in there? I think he spent three years in prison and failed many netizens who supported his innocence. "
Xu Ting: Smile and don't forget to thank you.
When Xu Ting came home, she hugged her relatives and friends excitedly and kept smiling without any fatigue. In the interview, he still didn't forget to thank him. "Thanks to the country, thanks to the court, thanks to my lawyers Yang Zhenping and Huang, thanks to the media, please rest assured that I will live a good life."
In his eyes, a new life began on this day.