How to define the behavior of stealing credit cards and using them is controversial in academic circles. To sum up, there are mainly the following points:
(1) should be convicted of theft. The main reasons are as follows: credit cards are payment vouchers, and stealing credit cards is to a large extent occupying other people's property. Although after stealing a credit card, the perpetrator wants to use it to really occupy other people's property, the process of using a credit card is a process of transforming the uncertain value of the credit card into concrete property, which is essentially a continuation of the crime of theft, so it should be punished as theft. This view and related judicial interpretation are in line with the legislative spirit.
(2) The act constitutes an implicated offense and should be punished as a felony. However, in terms of specific treatment, some people think that it should be treated as theft, while others think that it should be convicted of fraud.
(3) Specific analysis should be made. Whoever steals valid certificates shall be convicted of theft; Whoever steals an invalid card shall be convicted of credit card fraud. Another specific analysis is that if you use a stolen credit card to withdraw cash or spend it at a special merchant or bank, it constitutes a crime of credit card fraud; If you use a stolen credit card on an ATM without spirituality, it will be regarded as theft.
(4) The act of stealing credit cards and using them can only constitute the crime of credit card fraud, but not the crime of theft.
We agree with the fourth opinion. Because:
(1) Theft can't fully reflect all the behaviors. Generally speaking, the act of stealing credit cards and using them is a process of occupying other people's property by illegal means. It includes two parts: stealing and obtaining other people's credit cards and fraudulently using other people's credit cards. Theft and fraud are both property crimes, and illegally obtaining other people's property is the focus of such crimes. In the two parts of this behavior, it is fraud rather than theft that obtains property, and theft only provides a possibility and is not the focus of evaluation. Being classified as theft can not reflect the characteristics of the perpetrator defrauding property. (2) Using stolen credit cards is not an act that cannot be punished afterwards. The so-called "behavior without punishment afterwards" refers to the behavior that the previous criminal behavior continues and is naturally postponed within the scope of infringing the same legal interests, and the law does not repeat the evaluation and punishment. The legal interests infringed by "unpunished act afterwards" are the same as those of the previous act, and the implementation of the act afterwards will not expand the scope and degree of legal interests infringement, so it is absorbed by the previous criminal act. The essence of ex post facto behavior can be summarized as a constituent element, which can include evaluating what kind of behavior. After-the-fact behavior and before-the-fact behavior are carried out by the same subject, and the same legal interests are intentionally violated based on the same crime. The previous behavior has completely constituted a crime, which is a closed crime constitution, enough to fully evaluate the nature of the behavior. Because of its nature, the behavior after the event is absorbed by the previous behavior, and the criminal law does not separately convict and punish it.