蚂蚁花呗套现行为之刑法评价——以解构冒用他人账号进行套现为切入

On Current Criminal Law Evaluation of Ant Huabei System——From Deconstruction Others ID to Get Cash Perspective

随着互联网金融的发展,花呗等类似信用卡的透支工具出现在人们的消费方式中,以花呗套现为代表的新型套现方式也成为问题。司法实践中,围绕冒用他人支付宝账户进行花呗套现行为应如何认定的问题争论不休,有观点主张按传统信用卡诈骗罪处理,亦有观点则认为不应将花呗产品认定为信用卡,其更符合盗窃、诈骗罪的犯罪构成,还有观点认为可将花呗套现行为解释为非法经营罪进行规制。逐一分析上述观点,结合花呗套现自身特点,在恪守罪刑法定原则的前提下,可以找到对于该种行为的合理规制。

With the development of internet finance, Ant Huabei system and other overdraft tools like credit cards appear out of the way people spend, and has also produces some problems. In judicial practice, there is a debate about how to identify the behavior of spending money by using other people's Alipay accounts, and there is a view that the traditional credit card fraud crime should be dealt with, and some people think that the Huabei product should not be identified as a credit card, which is more in line with the crime of theft or fraud. There is also a view that the current use of Huabei system as an explanation for the crime of illegal business regulation. Analyzing the above views one by one, combined with the characteristics of Huabei system, we can find a reasonable way to regulate this kind of behavior on the premise of adhering to the principle of legality of crime and punishment.