拾得他人信用卡并使用行为的司法认定

Judicial determination of the act of picking up and using another’s credit card

行为人拾得他人信用卡不会导致信用卡内资金占有状态发生改变,卡内资金仍由持卡人和银行占有,显然不能成为侵占罪的对象。行为人隐瞒其并非持卡人或未经授权的真相,通过ATM机输入具有识别身份作用的密码,使银行产生错误认识进而同意处分卡内资金,构成信用卡诈骗罪;行为人使用他人遗忘在ATM机内已输入密码的信用卡,不属于拾得信用卡,而是盗窃信用卡并使用,且其仅隐瞒身份的行为无法使银行产生错误认识,应以盗窃罪论处。

If the perpetrator finds another person’s credit card,it will not lead to a change in the state of possession of funds in the credit card.The funds in the card are still in the possession of the cardholder and the bank,and obviously cannot be the object of the crime of embezzlement.The perpetrator conceals the truth that he is not the cardholder or is unauthorized,and enters the password with the identification function through the ATM machine,so that the bank has a misunderstanding and agrees to dispose of the funds in the card,which constitutes the crime of credit card fraud;the perpetrator uses other’s credit card forgot in the ATM with the password entered does not belong to picking up credit card,but belongs to the act that the credit card is stolen and used,and the act of concealing the identity alone cannot make the bank misunderstood,so it should be punished as theft.