Case:
Ren is a staff member of the purchasing department of a large shopping mall (limited liability company) in this city, responsible for selling shopping vouchers issued by shopping malls.
On June 5438+February, 2002, Ren Mou, together with her husband Hao Mou and her younger brother Ren Moumou (both unemployed), after premeditated, Ren Moumou contacted the printing house to print 3,000 fake shopping vouchers (each of which can be purchased in the shopping mall at 100 yuan), and later Ren Mou smuggled the official seal of the shopping mall on the fake shopping vouchers and sold some of them to Hao Mou and Hao Mou. On June 5438+1October 3 1 day, 2003, the cashier center of the shopping mall found that customers used fake shopping vouchers to shop and put them on file. At this time, Ren has sold and used fake coupons to make a profit of 1.4 million yuan.
Comments:
There are three different opinions about this case:
The first opinion is that Ren's behavior constitutes the crime of securities fraud. The reason is that shopping vouchers in shopping malls are a kind of securities, and any act of forging or selling fake securities to defraud others' money conforms to the crime of securities fraud.
The second opinion is that Ren's behavior constitutes the crime of duty embezzlement. The reason is that Ren, as a staff member of a limited liability company, took advantage of his position to stamp the forged shopping vouchers with the company seal, and then took advantage of his position in the group buying office to sell fake shopping vouchers to customers, and illegally took the sales money that should have been handed over to the company's financial department as his own. His behavior should belong to duty behavior and should be convicted of duty embezzlement.
The third opinion is that any behavior of fabricating facts, concealing the real situation from customers and defrauding others' money is in line with the crime of fraud, and his behavior should be convicted and punished for fraud.
The author agrees with the third opinion that Ren's behavior constitutes a crime of fraud for the following reasons:
First of all, Ren's behavior does not constitute the crime of securities fraud. According to the provisions of Article 197 of the Criminal Law, the crime of securities fraud refers to fraudulent activities by using forged or altered treasury bills or other securities issued by the state, and the amount is relatively large. The object of this crime is a dual object, which infringes on the property ownership of others and the securities management system of the country. The object of crime can only be the specific securities stipulated in the criminal law: treasury bills or other securities issued by the state, that is, government bonds. The use of forged or altered other securities cannot constitute this crime.
In this case, Ren forged only a token issued by a shopping mall. Although this kind of token contains real right, shows a certain face value and has a certain payment function, but this kind of securities is prohibited by the state, only an independent act of enterprises, and does not have the nature of public bonds, which does not meet the requirements of the special criminal object of securities fraud. Although the subjective and objective aspects of any behavior are more in line with the characteristics of securities fraud, it cannot be defined as securities fraud.
Secondly, Ren's behavior does not constitute the crime of duty embezzlement. This case seems to be a crime of duty embezzlement, but according to the provisions of Article 271 of the Criminal Law, the objective aspect of the crime of duty embezzlement must meet the following conditions in addition to the special subject, that is, the personnel of companies, enterprises or other units: 1, taking advantage of the convenience of duty; 2. It must be illegal possession of the property of the unit, and the amount is larger than that. The means of illegal possession can be manifested as embezzlement and fraud.
Although Ren has the subject qualification of the crime of duty embezzlement, his objective behavior does not meet the requirements of the crime of duty embezzlement. Specifically, there are the following two aspects: on the one hand, the act of affixing the official seal of the company on the fake shopping vouchers and selling the fake shopping vouchers at the group purchase office does not belong to taking advantage of his position. The term "taking advantage of one's position" as stipulated in the crime of embezzlement refers to taking advantage of the position of a person in charge to handle and manage the property of a company or enterprise, and directly and illegally occupying the property of the company or enterprise. In some respects, it is qualitatively different from "taking advantage of work". "Taking advantage of work" can be manifested as taking advantage of the favorable conditions formed by my work in the unit, such as being familiar with the criminal environment because of my work relationship, being able to contact the official seal of the unit, and being easy to approach the criminal target by virtue of my staff status. These have no direct, inevitable and regular causal relationship with my work itself, that is to say, people without specific identities can create these conditions to achieve the purpose of completing crimes.
In this case, Ren embezzled the official seal of his unit in the fake shopping vouchers. In my opinion, he took advantage of his convenience in contacting the official seal of his unit, not his position, because Ren was only responsible for selling shopping vouchers in the shopping department of the shopping mall group, and forging fake shopping vouchers had nothing to do with the position itself, which was purely his personal behavior. The reason why the official seal of the company is stolen on the fake shopping vouchers is to make the fake shopping vouchers more realistic.
By the same token, after forging fake shopping vouchers for sale, Ren, a shopping mall group working in his own office, also made use of the characteristics of working environment and staff identity to facilitate access to customers and complete crimes. Of course, this should not be regarded as his duty behavior. Because fake shopping vouchers can be illegally possessed by selling or shopping directly in shopping malls after they are forged. In fact, it is through these two ways that it illegally occupies public and private property, that is to say, there is no direct and inevitable causal relationship between the job responsibility of selling shopping vouchers and the property it occupies.
On the other hand, the author thinks that it is very critical for Ren not to possess the property of his own unit. For the act of shopping in a shopping mall with forged fake shopping vouchers, it occupies the property that the business outlets of the shopping mall are responsible for keeping; For any fake shopping vouchers sold to customers, they should be the property of customers, because once he sells fake shopping vouchers to customers, he has already completed illegal possession, and he can completely ignore whether customers can use these fake shopping vouchers to buy property. However, the money from selling fake shopping vouchers in any shopping mall is uncontrolled and dominated. How can this be regarded as any managed shopping mall property? According to the above two aspects, Ren's behavior is neither taking advantage of his position, nor encroaching on the property of his unit, and should not constitute the crime of occupational embezzlement.
Finally, the author thinks that Ren forged fake shopping vouchers for the purpose of illegal possession, and then used fake shopping vouchers to defraud customers in shopping malls and directly defraud shopping malls. Anyone who forges fake shopping vouchers for shopping or sells fake shopping vouchers is an objective act of fabricating facts and concealing the truth, so as to achieve the criminal purpose of illegal possession of public and private property, which fully meets the subjective and objective requirements of fraud. According to Article 266 of China's Criminal Law, Ren's behavior constitutes the crime of fraud.