偷换二维码取财案的认定分歧与正确定性

The Identification Distinction and Positive Certainty of the Case of Stealing and Changing Two-Dimensional Code to Obtain Money

以偷换二维码取财案为例,梳理出实务界与理论界关于该案的定性主要存在着诈骗说与盗窃说的分歧,具体争议焦点体现在被害人、行为对象、实行行为等的认定上。从犯罪行为直接侵害财产的角度认定被害人为顾客,在批判规范占有的基础上认定行为对象是顾客占有的钱款,偷换二维码的行为是犯罪预备行为,顾客的支付行为是客观阶层的实行行为,行为人利用了顾客的支付行为,成立盗窃罪(间接正犯)。

Taking the case of stealing and changing two-dimensional code as an example,this paper points out that there are differences between practice and theory on the nature of the case between the crime of fraud and the crime of theft,the specific dispute focuses on the identification of the victim,the object of the act,the act of implementation.From the perspective of that the property is 77directly infringed by the criminal act,the victim is determined to be the customer,on the basis of criticizing the normative possession,it is determined that the object of the act is the money in the possession of the customer,the act of stealing the two-dimensional code is a criminal preparatory act,the customer’s payment behavior is the act of implementation of the objective class,and the perpetrator uses the customer’s payment behavior to establish the crime of theft(indirect offender).