Please refer to the following article to learn about the issue of theft of electronic funds

In recent years, my country's financial information construction has made great progress, and a large number of electronic fund transfer systems have been introduced (EFTSs) are used in various social and economic activities and are currently developing in the direction of integrating with the international financial system, promoting the prosperity of the national economy. The so-called electronic fund transfer system refers to a computer-controlled collection and payment system that uses computers to record the flow, increase or decrease of funds in financial accounts through light, electricity or other signals, thereby reflecting and recording certain economic activities. For example, point of sale systems (POSs), automated deposit and withdrawal machines (ATMs), automated clearinghouses (ACHs), electronic identity authentication systems, etc. These computer information systems provide e-commerce services such as wire transfers, direct deposits, entrusted deposits, check verification, credit card and telephone payments. The process of recording each transaction on a computer financial account is called an electronic money transfer. The electronic data records that exist in the electronic fund transfer system and represent certain asset ownership relationships are called electronic money. The financial system has always symbolized endless treasures in people's minds, which makes crimes of using computers to steal electronic money occur from time to time. Criminals often take advantage of the convenience provided by the electronic fund transfer system and use computer technology to steal electronic funds through the network.

There are many ways to commit crimes by using computers to steal electronic funds, and with the expansion of the application scope of electronic funds, more criminal methods will appear. One of the more prominent methods currently is illegal intrusion into financial institutions. Computer information system, modify electronic fund accounts, transfer electronic funds. For example, in August 1998, former ICBC employee Hao Jinglong took advantage of his familiarity with the operation of bank computer terminals and banking procedures to conspire with his brother Hao Jingwen to steal funds from financial institutions. The Hao brothers illegally invaded the financial computer system through wireless intrusion devices connected to the dedicated lines of the bank's computer system, transferred 720,000 yuan to 16 accounts prepared in advance, and actually withdrew 260,000 yuan. (Note: See "Yangzhou Public Trial of Computer "Hackers"", Chutian Metropolis Daily, January 10, 1999.) This case raises a legal question, that is, are electronic funds included in the crime of theft? If it is the target of a crime, how should the completed and uncompleted forms of this type of crime be defined?

Since the relevant judicial interpretations do not explicitly stipulate that electronic funds are the object of the crime of theft, and in addition, there are "substance theory", "utility theory", "possibility of possession theory", There are different opinions such as the "management possibility theory", so the treatises on theft crime do not include electronic funds when talking about the criminal objects, so electronic funds have become a forgotten corner. We believe that the property that is the object of theft must have a certain economic value and can be controlled, controlled, transferred and used by human beings, including tangible property, intangible property and valuable services. Based on this understanding, electronic funds belong to the category of objects of theft. The reasons are as follows: (1) The content of stolen objects should continue to expand with the development of society. Looking back at the history of the crime of theft, its criminal targets expanded from tangible property to intangible energy, and then expanded to telecommunications services in response to the development of the communications industry. In response to the development of financial instruments, it expanded to payment vouchers, negotiable securities, and negotiable instruments. etc. Today, as the channels for commodity exchange continue to increase, the object of the crime of theft will inevitably include electronic funds, a new form of property expression. (2) There is no essential difference between electronic funds and valuable payment certificates, securities, and negotiable instruments. They are all modern financial tools, representing certain property and its ownership. Since credit cards, value-added tax invoices, etc. can all become targets of theft , why can’t electronic funds become the object of theft? (3) Criminal law and judicial interpretations have stipulated that electricity, gas, natural gas and telecommunications services are the objects of the crime of theft. Like electronic funds, they are not only intangible property, but also objects that people cannot completely control. Since the first four can be used as theft, object, then electronic funds should also be the object of theft. At present, the crime of using computers to steal financial assets has become very serious. According to relevant reports, "Computer network crime cases in the financial industry account for 61% of the national incidence rate... The most serious financial computer crime case in our country caused economic losses of up to 21 million yuan", (Note: Li Na: "Creating a safe digital space for banks", "Modern Commercial Bank", Issue 8, 1999.

) Moreover, the internationalization of my country's financial information and the opening of the financial industry to the world will make the security of bank assets face severe challenges. If electronic funds are not included in the crime of theft, it will not be conducive to combating the crime of using computers to steal electronic funds and The crime of stealing electronic funds and then using online banking to launder money.

Electronic funds should be the object of theft, and it is easy to obtain knowledge in judicial agencies and criminal law circles. However, regarding the use of computers to steal electronic funds, it may be difficult to unify the understanding of the completed crime and the uncompleted form of the crime. In criminal law theory and judicial practice at home and abroad, there are different views on the criteria for classifying completed and attempted theft, including the "contact theory", "transfer theory", "hiding theory", "control theory", "loss of control theory", "loss of control theory" "Additional control theory" and so on, the latter is a general theory. Which theory can scientifically solve the problem of completed and attempted theft of electronic funds requires in-depth study. For example, perpetrators use computers to invade the financial system by deciphering account passwords or forging identity "digital certificates" (a kind of "ID card" for e-commerce traders). (Note: Zhao Mingliang: "my country will issue "ID cards" for electronic transactions. "" Science and Technology Daily, September 5, 1999.) Illegal transfer of huge amounts of electronic funds from other people's accounts to one's own account, without withdrawing cash or conducting online shopping or other transactions or use. Do you think the theft was completed? There are two different views in the criminal law community on this issue:

One view claims that as long as the perpetrator illegally transfers other people’s electronic funds into his own account, the theft is completed, and there is no attempt or suspension. problem. There are two reasons: (1) Electronic funds are different from general knowledge information. If funds from other people's accounts are secretly transferred to one's own account through the computer, the funds in the victim's account must be reduced accordingly, otherwise the computer will refuse to operate. The perpetrator transfers other people's electronic funds into his own account. Since the perpetrator has completed the transfer of the electronic funds, it means that the funds are out of the victim's control and are under the control of the perpetrator. At this time, the perpetrator can You can withdraw cash at any time or use the stolen electronic funds online, such as online shopping and other transactions, so it should be established. (2) Denying that the transfer of electronic funds constitutes completion, and requiring the perpetrator to withdraw cash or use it through the Internet to establish completion, actually does not admit that electronic funds are the object of the crime of theft, but only recognizes that electronic funds are converted into cash or The view that it is established only when it is used for other purposes not only fails to reflect the development of information socio-economic relations, but is also inconsistent with Article 5, Section 2 of the "Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Theft Cases" issued by the Supreme People's Court on March 10, 1998. It conflicts with the provisions on the theft of valuable payment vouchers, securities and negotiable instruments.

Another view is that the perpetrator illegally transfers a huge amount of other people's electronic funds secretly into his own account, and the attempted suspension may occur before the cash is withdrawn or used for other purposes. The reasons are: (1) After the perpetrator transfers the electronic funds into his own account, and before withdrawing cash or doing other functions, his crime may be discovered by the financial security protection system and the victim. After timely monitoring, reporting to the police, or reporting the loss, the crime will become illegal. The person's account is frozen. In this case, the bank can still control the stolen electronic funds and fully recover the victim. This is a failure of the theft due to reasons beyond the will of the perpetrator, and should be treated as attempted theft. In addition, it does not rule out that the perpetrator regrets committing the crime and automatically returns the electronic funds transferred to his account to the victim's account. If this happens, it is enough to prove that the perpetrator has voluntarily given up the crime and effectively prevented the occurrence of the crime. Therefore, it should be Crime suspension. If these two situations are all deemed as completed crimes, it would be contrary to the criminal policy of differential treatment. (2) Although electronic funds are also a kind of financial instrument, they are different from valuable payment certificates, securities, and negotiable instruments in the form of expression and usage. Therefore, the issue of completed or attempted theft of electronic funds cannot be determined by analogy. The provisions of the aforementioned judicial interpretations regarding the theft of valuable payment certificates, securities, and negotiable instruments shall apply. Besides, credit cards are also a financial tool. According to Article 196 of the Criminal Law, "anyone who steals a credit card and uses it" will be punished according to the conviction of theft. Article 10 of the aforementioned judicial interpretation of the Supreme Court stipulates that if a credit card is stolen and used, “the amount stolen shall be determined based on the amount used by the perpetrator after stealing the credit card.

"It can be seen that whether a credit card is used is an important basis for establishing the crime of theft. There are three main ways to steal a credit card: one is to steal the credit card and illegally obtain the password to withdraw cash from a financial institution; the other is to forge an identity card Use it with a credit card to obtain goods or services from credit card merchants; the other is to steal other people's credit card account passwords and order goods by mail through online merchants, or secretly transfer funds through online banks. For example, in October 1998, the World Bank Mr. Paul Jinsen, the executive consultant of Shenyang Machine Tool Co., Ltd., discovered that his credit card account was stolen and used for overseas online shopping, resulting in a loss of more than 10,000 U.S. dollars. The Shenyang police investigated the case and identified the foreign student Sonu and him. The girlfriend who worked at the Star Hotel teamed up to steal the credit card accounts of several people, including Paul Jinsen, and went shopping on the Internet (Note: Han Junjiang: "Aspects of Financial Computer Hackers", "Modern Commercial Bank". , Issue 7, 1999.) Theft of electronic funds is no different from theft of credit card accounts. Since theft of credit card accounts should be determined based on the "amount used," why can't the theft of electronic funds be determined based on the amount actually used by the perpetrator? (3) Item 2 of Article 1 of the aforementioned judicial interpretation stipulates: “If the theft is attempted and the circumstances are serious, such as a huge amount of property... as the target of theft, the person shall be convicted and punished. "Article 5, Item 2, Item 3 stipulates that for theft of registered valuable payment vouchers, securities, and negotiable instruments, "if the face value is undetermined but has been cashed, the value of the property will be calculated based on the actual cashed value; if the value has not been cashed, , can be used as a basis for conviction and sentencing. "The "conviction and sentencing circumstances" here include attempted crimes and aborted crimes. Attempted crimes and aborted crimes are not only the unfinished form of the crime, but also important sentencing circumstances. Therefore, according to the spirit of the above provisions, the amount of stolen electronic funds is huge and has not yet been cashed. What is used is an attempt to commit a crime; what is returned automatically before the crime is exposed is a cessation of the crime.

The author believes that electronic currency as the object of theft is a product of the development of financial electronics and e-commerce, and is the same as traditional materials. Wealth, currency, financial bills, financial certificates and securities are all different in terms of expression, management and use methods, access and exchange procedures. In judicial practice and criminal law theory, the traditional "theft" cannot be used to deal with theft. To deal with the problem of electronic currency theft using the "property" thinking method, we should proceed from reality and scientifically judge the completion of the theft of electronic currency and the unfinished form of the crime. Therefore, we prefer the second view.