借打手机趁机占为己有的性质认定——基于实证分析的考察

Judicial Ascertainment of Illegal Appropriation of Borrowing Cell Phones to Make Phone Calls:An Empirical Analysis

借打手机为名,趁机占为己有,其性质认定在司法实践中较为混乱。要想对此类案件进行合理定性,必须以行为人之间是熟人还是陌生人为判断基础,以行为手段是秘密逃跑还是公然逃跑为判断标准,进行综合评判。具体而言,陌生人之间的借打手机行为,被害人一般会保持警惕心理,根据社会一般观念,手机虽然在犯罪人手中,但事实上仍由被害人实际占有,通过此种欺骗不可能取得财物。此时若是秘密逃跑,构成盗窃,若是当着被害人的面公然逃跑,则构成抢夺。熟人之间的借打手机行为,尽管犯罪人也往往会编造理由,但此时被害人并不是基于陷入认识错误,而是基于熟人关系信赖心理而将手机借给犯罪人,因而不能认为是被骗。同时,由于可以随时找到犯罪人,故也不能认为是盗窃或者抢夺。此时,即使行为人在借打手机之前就有非法占有的念头,也只能认定为侵占。

Judicial ascertainment of illegal appropriation of borrowing cell phones to make phone calls is still in a perplexing situation. In order to make legal ascertainments for these cases,we have to make a comprehensive judgment by deciding whether the act of borrowing the cell phones occurs between acquaintances or strangers and whether the perpetrator of illegal appropriation of the cell phones commits a secret sneak or a public run-away.Specifically speaking,if the act of borrowing the cell phones occurs between strangers,the cell phone owner and victim will generally be psychologically vigilant and on alert; although the mobile phones are in the hands of the perpetrator who borrows the phone,it is unlikely that the this kind of deception could ever happen. If the perpetrator takes the phone away and escape secretly without being noticed by the phone owner and victim,it can be legally recognized as theft; and if the perpetrator escapes publicly at the presence of the phone owner and victim,the act can be recognized as robbery. On the other hand,when the act of borrowing cell phones occurs between acquaintances,and the illegal appropriation case happens,the perpetrator tends to make excuses. Under such circumstance,it can be ascertained that the victim is not deceived for the reason that he/she lends the phone to the perpetrator not because of his/her cognitive errors but because of the trust between himself/herself and the perpe-trator. Thus this act of illegal appropriation of cell phones cannot be ascertained as theft or robbery because it is very likely that the perpetrator can be found. Therefore,even though the perpetrator has the intention of illegally taking away the phone,it can only be ascertained as illegal appropriation.