民刑交叉视角下挂失取出卡内他人钱款的定性分析

A Qualitative Analysis of Reporting Loss and Taking out Others’Money in Bank Card from the Perspective of Civil and Criminal Cross

挂失取出本人银行卡中的他人钱款涉及民刑交叉问题,理论、实践争议较大。对此,应当明确三个前提:债权能够被占有、存款为银行占有、实际存款人与银行之间存在实质的债权债务关系。在此基础上,无罪说、侵占说、盗窃说都是不合理的,此类行为应当成立三角诈骗,卡主的挂失行为欺骗了银行,从而使得银行处分了其与持卡人之间的债权,持卡人遭受了财产损失。

Reporting the loss and taking out others’money in the bank card involves intersecting civil and criminal issues,which are controversial in theory and practice.There are three prerequisites:the creditor’s rights can be possessed,the deposits are held by the bank,and there is a substantial creditor-debt relationship between the actual depositor and the bank.Therefore,the innocence theory,the embezzlement theory,and the theft theory are all unreasonable,this is a triangle fraud.The card owner’s loss-reporting behavior deceived the bank,which caused the bank to dispose of the creditor’s rights between it and the cardholder,and the cardholder suffered property losses.