摘要
行为人利用ATM机故障非法提款,其社会危害性和主观恶性都说明已经构成犯罪。利用ATM机故障非法提款不是基于不当得利的代为保管行为,不构成侵占罪,也不是恶意透支,不构成信用卡诈骗罪。利用ATM机故障非法提款行为应定性为盗窃金融机构。不过在量刑上应对"数额特别巨大"作新的理解,并注重刑法第63条第2款功能的发挥,以避免处刑畸轻畸重。
The action of the door, who uses the faulty of ATM machine to draw money, has proved that it is a crime for social harmful- ness and subjective viciousness. However, what crime it would be, which is being heatedly discussed by the theory circle and judicial circle. According to the criticism of encroachment theory and credit card fraud theory and the understanding of the constitutive requirements of the larceny, I think that the action which makes use of the faulty of ATM machine to draw money is a larceny, to be more exact, stealing financial institution. But we must make a new viewpoint about the concept of ＂an enormous amount＂ in the sentencing. In the other hand, we also must keep good hold the understanding about Section 2 of Article 63 in the Criminal Law, avoiding penalty over weight.
出处
《湘潭大学学报（哲学社会科学版）》
CSSCI
北大核心
2008年第4期61-63,共3页
Journal of Xiangtan University:Philosophy And Social Sciences
关键词
ATM机故障
非法提款
盗窃罪
量刑
the faulty ATM machine
illegal drawing
larceny
sentencing
