网络移动支付环境下信用卡诈骗罪定性研究

Qualitative Research on the Crime of Credit Card Fraud under the Network Mobile Payment Environment

网络移动支付是网络技术与金融产品深度结合的产物。在网络移动支付环境下,信用卡的实质内涵应当是具有特定关系的金融账户。网络移动支付账户与信用卡账户既有区别又有紧密联系。两者的本质区别是前者由非金融机构设立,后者由金融机构设立,因而不能将两者等同视之。基于两者的紧密联系,应将网络移动支付视为信用卡的新型支付方式。在网络移动支付环境下,冒用信用卡行为的对象是具有特定关系的金融账户;冒用的主要类型是冒用网络移动账户实施侵财;冒用的重要特征不是"账户资金被盗",而是"机器人被骗"。"窃取他人信用卡信息资料并通过互联网、通讯终端使用"与"盗窃信用卡并使用"之间的逻辑冲突进一步放大,立法上适时作出调整迫在眉睫。以非法占有为目的盗用他人手机并利用其网络移动支付账户转账的行为应以信用卡诈骗罪定性。

Network mobile payment is the combination product of network technology and financial products. In the network mobile payment environment,the essence of the credit card should be the financial account with a specific relationship. The network mobile payment account is different from credit card account,but they are closely related. The essential difference between them is that the former was set up by non-financial institutions,and the latter was set up by financial institutions. Therefore,they cannot be regarded as the same. Based on the close relationship between them,mobile payment should be regarded as a new payment mode of the credit card. Under the network mobile payment environment,the object of fraudulent use of credit card is the financial account with a specific relationship. Fraudulent use of mobile network account is the main type of property crime behaviors. The important feature of fraudulent use is not account funds stolen but robot cheated. The logical conflicts between stealing other person＇s credit card information and using it through the Internet and the communication terminals and stealing credit cards and using them will be further enlarged,and it is urgent to make timely adjustments in legislation. For the purpose of illegal possession,the act of embezzling another person＇s cell phone and using its network mobile payment account should be characterized as the crime of credit card fraud.