“偷换二维码案”的定性问题研究

Research on the Qualitative Problem of“Stealing and Changing Two-dimensional Code Case”

在“偷换二维码案”中,行为人通过偷换商家设置的付款二维码,将顾客支付的货款非法占为己有。就此类案件的定性问题,理论上存在“盗窃罪说”“诈骗罪说”和“侵占罪说”等多种观点。在财产犯罪的场合,被害人的认定对行为的定性会产生重要的指引作用。从交易活动整体上看,顾客在交易中并不存在实质的财产损失,而商家则的确失去了在交易中应当获得的商品对价。因此,商家是“偷换二维码案”的被害人。不能将“偷换二维码案”定性为诈骗罪的主要原因,在于顾客在付款时并未产生错误认识,主观上缺乏向行为人处分财产的处分意思,且商户自始至终仅具有向顾客收取商品对价的主观意图。对“偷换二维码案”应当定性为属于盗窃罪的间接正犯行为,即行为人通过商家出示错误的付款二维码和顾客付款的行为,最终实现了对商家应收价款的非法占有。

In the“stealing and changing two-dimensional code case”,the actor illegally takes the payment paid by the customer as his own by stealing and changing the two-dimensional payment code set by the merchant.As far as the qualitative problem of such cases is concerned,there are many views in theory,such as“theft doctrine”“fraud doctrine”and“embezzlement doctrine”.In the occasions of property crimes,the identification of victims plays an important guiding role in the determination of behavior.From the perspective of trading activities as a whole,customers do not have real property losses in the transaction,while businesses do lose the commodity consideration they should obtain in the transaction.Therefore,the merchant is the victim of the“stealing and changing two-dimensional code case”.The main reason why the“stealing and changing two-dimensional code case”cannot be characterized as the crime of fraud is that customers do not have a wrong understanding when making payment,subjectively lack the intention to dispose of property to the perpetrator,and merchants only have the subjective intention to obtain commodity consideration from customers from beginning to end.The act in the case of“stealing and changing two-dimensional code”should be characterized as an indirect principal offender of theft.That is,the perpetrator finally realizes the illegal possession of the price receivable by the merchant by merchant’s showing the wrong payment two-dimensional code and customer’s payment.