The qualitative dispute of theft, fraud and robbery mainly lies in the distinction between theft and fraud

In criminal law theory, theft and fraud belong to the crime of possession transfer, that is, theft and fraud are the reasons for the transfer of property possession, but theft is the crime of obtaining against the intention of the other party, while fraud is the crime of obtaining based on the intention of the other party. That is to say, theft is in violation of the property owner or manager will make the possession of the transfer, and fraud because the property owner or manager deceived in the wrong understanding and take the initiative to deliver the property and make the possession of the transfer, here the delivery must be under the disposition of the possession of the transfer, which is the essential distinction between theft and fraud. From the means of disposition and delivery, the crime of theft emphasizes the secret stealing of criminal behavior, the crime of snatch emphasizes the violence of criminal behavior, and the crime of fraud emphasizes the deception of criminal behavior and the victim's voluntary disposition of property. As for how to characterize the cases of theft, fraud and robbery, the relevant guiding opinions of the Supreme People's Court pointed out that the characterization of illegal possession of other people's property by both secret theft and deception should be distinguished from the crime of theft and fraud by whether the victim has a sense of disposing of property and the main means taken by the perpetrator. If the decisive means for the perpetrator to obtain property is fraud, the victim makes a defective payment based on the wrong understanding, and secret theft is only an auxiliary means, it should be identified as fraud crime; If the means of determining the significance of the perpetrator's possession of property is secret theft, fraud is only a cover for theft or to create convenient conditions, and the victim does not voluntarily dispose of his property, it should be identified as theft.

The "delivery + control" criterion can be used as a supplementary reference for qualitative analysis

The key to distinguish the crime of theft from the crime of swindling is whether there is any disciplinary behavior. Disciplinary behavior consists of two parts: objective behavior and intentional behavior. In determining the disposition behavior, we must adhere to the principle of subjective and objective unity, in addition to analyzing whether there is an objective "delivery" behavior, but also to judge whether there is a subjective "delivery" of property, that is, whether there is a recognition of the "delivery" of property and to what extent, only the delivery behavior with a sense of disposition can be identified as a disposition behavior. It is worth noting that the common feature of the behavior of such cases is that the victim has delivered the property in advance, subjectively deceived, objectively delivered. This is the origin of the qualitative dispute between theft and fraud in such cases, but the author believes that whether the possession of the property is transferred because of delivery, the key depends on whether the victim has the intention of disposing, mainly according to whether the victim continues to control the delivered property. If the control is abandoned, the transfer of possession dominating relationship may constitute the crime of fraud; If the control continues and the possession dominance relationship is not transferred, it should be analyzed according to the specific case and may constitute a crime of theft, robbery or other crimes. Therefore, the author puts forward "delivery + control" as the judgment standard of qualitative analysis. The "delivery" here refers to the objective behavior of the disposition, that is, there is no transfer of property possession. And "control" refers to the subjective expression of "punishment". In other words, after the delivery of the property, if the victim has actively supervised the behavior of the perpetrator holding the property, the victim is still in control of the property, and the relationship of possession and domination is not transferred; If the victim voluntarily gives up the control of the property after the delivery of the property, the disposition act is established, and the possession and domination relationship of the property is therefore transferred. Specific can be expressed by the following formula:

Delivery + control = no disposition → No transfer of possessory dominance

Delivery + no control = Disposition → Possessive-dominant relationship transfer

The judgment standard of "delivery + control" is more able to explain the nature of theft, fraud and robbery, concise and accurate, and more convenient for the case personnel to grasp the judgment.

Clarify the concept of "delivery" and its relationship in the act of disposition

In the sense of criminal law, the punishment is objectively manifested as the act of property delivery. The doer only needs to know the objective state of property transfer, possession and control, but it does not have the significance of changing real rights. Delivery means that one party hands over the property in his possession to the other party, including actual delivery and conceptual delivery. Delivery in civil law is the method of publicizing the change of the real right of movable property, but delivery in criminal law emphasizes that it is a cause force action to change the state of possession, is a purely objective delivery action, and does not have the significance of the change of specific real right. However, "delivery" does not mean "disposition", and only the combination of "delivery" and whether it is "control" can indicate whether it constitutes a "disposition". Delivery is only the objective form of disposition, is the cause of changing the state of possession, only delivery and relinquishment of the control of property constitute disposition. Objectively delivering property to the perpetrator or a third party for permanent possession, long-term possession or temporary possession, enabling the perpetrator or a third party to consume it immediately, and enabling the perpetrator or a third party to use the property on the spot are all deliveries in the meaning of criminal law.

How to judge the victim's "control" delivery and its status. This is an important basis for judging the expression of intention to dispose. "Control" refers to the subjective expression of "punishment". As for the way of "control", including "witness control" and "volitional control", the former emphasizes that the property is in their own line of sight, so that the property is in their own control and domination; The latter emphasizes that the victim actively takes corresponding preventive measures to supervise the current situation of property, and presumes that the victim is in a state of domination and control of property according to general social concepts and legal cognition. Generally, victims with full capacity for civil conduct should be aware of the possible risks and consequences of the delivery of property to the perpetrator. In judicial practice, judging whether the victim continues to control the delivery of property does not mean that the victim states that he has not given up subjectively, and should make a comprehensive judgment based on factors such as the case and the perpetrator. Such as the nature of the deception, the geographical environment at the time of delivery, common sense of life, general social concepts, and so on. The first is to consider a specific space-time range. If the property is held within a specific space and for a short time, the perpetrator does not have the sole right of control, and it can be determined that the victim did not give up the control of the property, such as trying on clothes and jewelry in the mall. The second is whether the victim has the meaning of transferring property control and domination. If it is a trend move based on life experience and common sense, the average person will have this move, it is still regarded as having the meaning of controlling property, such as borrowing a mobile phone in a restaurant on the spot. The third is to judge the extent to which the victim agrees with the perpetrator to leave, and consider factors such as lending time and distance comprehensively. If the victim consents to the perpetrator taking property away from the scene and out of the victim's control, the victim can be presumed to have relinquished control of the property.

Key points of applying the "delivery + control" qualitative judgment criteria

First, it is necessary to comprehensively analyze the various criminal means of the case to determine whether the act of delivery has changed the relationship of possession and control of property. In the case of theft, fraud and robbery of mobile phones, the criminal means are not only cheating, secret theft, but also involving blatant seizure and even the use of violence, etc. Which behavior is the key behavior that leads to the victim's loss of control over the property determines the nature of the case. Second, we should pay attention to the analysis of the transfer of property possession and control relationship. That is, whether the victim continues to control the property after the delivery of the property, to distinguish between simple delivery or the intention of disposition, pay attention to other crimes derived from the situation where the victim continues to control the property, such as borrowing a mobile phone on the spot, whether to take the hand and run, or to slip away while playing while walking, or to find other excuses to leave the sight of the victim, the difference in a few words, the qualitative difference in the case. The third is to conduct a comprehensive investigation of both acts of the perpetrator and the victim, and analyze the victim's early delivery and the perpetrator's subsequent transfer of property as a whole.