盗窃信用卡并使用行为定性的困境与破解

Dilemma of Determining Nature of Stealing and Use Credit Cards and Its Crack

《刑法》第196条第3款盗窃信用卡并使用定盗窃罪的规定属于法律拟制。盗窃信用卡并使用的行为被认定为盗窃罪不甚妥当,而应被认定为冒用型信用卡诈骗罪。随着信用卡虚拟化趋势的加强,盗窃实体信用卡并使用的情况逐渐被窃取信用卡信息资料并使用的情形所取代。盗窃信用卡并使用定盗窃罪规定的法理基础已不复存在,该规定不但明显与相关司法解释存在冲突,而且违背了罪刑相适应原则,继续强行适用该规定会导致诸多问题。刑事立法应考虑适时将该法律拟制规定修订为注意规定,并吸收司法解释的合理内容。在现行刑法尚未修订该条款的情况下应坚守相关司法解释之规定,将盗窃信用卡并使用的行为依照《刑法》第196条第1款第3项之规定,认定为信用卡诈骗罪。

In article 196,paragraph 3 of the Criminal Code,the provision that the theft of credit cards convicts theft should be regarded as legal fiction.It would be inappropriate to pretend that act which should constitute credit card fraud as a theft.The nature of the thefting and using of credit cards is supposed to be the act of fraudulent use of credit cards in credit card fraud rather than theft.With the degree of virtualization of credit cards.the using of stolen physical credit cards has gradually diminished,and the using of credit card information has increasingly become a major manifestation of the theft and use of credit cards.The legal basis for the provision that theft of credit cards convicts theft has ceased to exist.This provision not only clearly conflicts with the provision of relevant judicial interpretations,but also violates the principle of adaptation to crime.Continued application of this regulation will lead to many problems.Criminal legislation should consider revising the provisions of the law as a precautionary provision in a timely manner and absorbing the reasonable content of judicial interpretation.In the case that the current criminal law has not yet amended the clause,and the provisions of the relevant judicial interpretation shall be adhered to.The act of stealing the credit cards shall be deemed to be a credit card fraud in accordance with the provisions of paragraph 1 of the Criminal Code.