涉第三方移动支付侵财犯罪的定性

Study on the Characterization of Crime Involving Third Party Mobile Payment against Property

与传统的侵财犯罪相比,涉第三方移动支付侵财犯罪行为人与被害人并没有面对面的接触,犯罪行为模式也与传统盗窃、诈骗等犯罪有所不同,理论界与实务界对该类新型案件的定性存在一定的争议。涉第三方移动支付侵财犯罪中虽然被害人对于财物的去向并没有明确的认识,但仍因为犯罪行为人"虚构事实、隐瞒真相"的行为做出了错误的处分决定,符合诈骗类犯罪的行为特征。同时根据该类具体模式的不同,将其分为被害人主动操作型与犯罪人主动操作型两种,前者应定性为诈骗罪,后者应定性为信用卡诈骗罪。

Compared to the traditional crimes of infringing on property,the third-party mobile payment infringement crimes do not involve face-to-face contact between the criminals and victims.The behavior pattern of such criminals is also different from those of traditional theft and fraud.There is a certain controversy about the nature of this new type of criminal cases in theoretical and practical circles.The author believes that although the victim has no clear understanding on the property in the third-party mobile payment infringement crime,the victim still makes wrong decision when remitting the payment or disposing the property based on the“fictional facts,concealing the truth”by the criminal.Such process of behavior is in line with the behavioral characteristics of fraud crime.Meanwhile,the specific pattern of this type of crimes can be divided into two models,i.e.,the victim actively gets involved in property disposal,and the criminal actively leads the property disposal.The former type is classified as fraud,and the latter one is classified as credit card fraud.