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名义持卡人通过挂失并取走实际持卡人卡内钱款,这一行为在近几年屡见不鲜,其行为性质在理论界有侵占罪和盗窃罪两种对立的观点,司法实务中也出现了同案不同判的情况,导致法律适用的不统一和刑罚的不公,损害了司法的权威。笔者从两罪的本质区别,即占有的认定着手,分析此类行为应认定为构成盗窃罪,而非侵占罪。
In the past few years, the name cardholder reported and opposed the actual cardholder’s card money. The behavior of the cardholder has two kinds of opposites: conviction of embezzlement and theft of theft, and also appears in judicial practice The case of different sentences in the same case led to the non-uniform application of the law and the injustice of the penalty, thus damaging the authority of the judiciary. The author from the essence of the difference between the two guilty, that possession of the determination to proceed, analysis of such acts should be identified as constituting theft, rather than embezzlement.