提取错误汇款行为的刑法认定

The Determination of Withdrawing Mistaken Remittance in Criminal Law

在提取错误汇款案件中判断存款的占有归属是核心问题。在卜某侵占案中,被告人卜某将他人错误汇入其账户的钱款通过取现和转账的方式非法获取,拒不归还,对该行为的定性应从刑法角度出发,明确刑法占有概念与民法占有概念的不同。同时对刑法中传统的事实占有概念进行反思,揭示占有的本质是社会分配关系,规范性要素是占有判断的决定性因素,并采用社会分配领域理论确定占有归属的一般判断路径。现金属于银行的分配领域,由银行占有,卜某的取款行为并不构成犯罪,取款之后拒不返还的行为才是刑法评价的对象,最终构成侵占罪。

Determining the possession of deposits is the core in the cases of withdrawing mistaken remittance.In Bu’s case of embezzlement,the defendant illegally obtained the money mistakenly remitted into his account through cash withdrawal and transfer and refused to return it afterwards.The nature of the act should be determined from the perspective of criminal law to clarify that the concept of possession in criminal law differs from that in civil law.Meanwhile,reflections should be made on the traditional concept of factual possession in criminal law to reveal that the essence of possession is the relationship of social distribution and that normative elements are determinants in the judgement of possession.In accordance with the theory of social distribution field which determines the general path of possession judgment,Bu’s withdrawal does not constitute a crime because cash belongs to banks’distribution field and hence is occupied by banks.It is his refusal to return the money after withdrawal that is the object of evaluation in criminal law and consequently constitutes the criminal offense of embezzlement.