21

2021

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07

Lawyer from Legal Shengbang said that Yu Hailiang and Li Yuying: How to characterize the behavior of selling vehicles loaded with GPS positioning systems online and then retrieving them privately

Lin sold his own car to the victim Song through a second-hand car platform and delivered it. Afterwards, Lin quickly found the vehicle through the GPS positioning system bound to his mobile phone and used a spare key to steal it back while there was no one around.


Lin sold his own car to the victim Song through a second-hand car platform and delivered it. Afterwards, Lin quickly found the vehicle through the GPS positioning system bound to his mobile phone and used a spare key to steal it back while there was no one around. After obtaining it, Lin once again listed the vehicle on the online platform for sale. After the victim lost their car, they reported the case, and the police identified the suspect as Lin through surveillance video, so they arrested Lin and brought him to justice. The author, as Lin's defense, participated in the lawsuit in this case.

 

Focus of controversy

The public security organs in this case detained Lin for suspicion of theft. During the examination of the arrest, the prosecution approved Lin's arrest on the grounds that he constituted fraud. Later, they sued Lin for fraud, and the defender proposed that this case should be recognized as theft. In the end, the court accepted the defender's opinion and determined that Lin's behavior constituted theft.

 

Defense viewpoint

In this case, the charges have been repeatedly changed, reflecting different understandings among the parties involved in the lawsuit regarding the nature and legal application of the actions of the perpetrator Lin. There are mainly two opinions. The first opinion believes that Lin's actions constitute the crime of fraud. The reason for the prosecutor holding this opinion is: firstly, after selling the vehicle, Lin stole it back through the vehicle's built-in positioning system, with a short time interval between the two actions. It can be seen that Lin did not really sell the car, but rather fabricated the fact that he sold the car to make the victim deliver property based on this erroneous understanding; Secondly, after the sale, Lin republished the vehicle on the second-hand car platform, which can be inferred that Lin subjectively planned to engage in fraud through the behavior of "selling the vehicle → stealing the vehicle through the positioning system → selling the vehicle again → continuing to steal the vehicle".

 

The second opinion holds that it constitutes theft. The reason is that after the delivery of Lin's vehicle, the possession of the vehicle was transferred, and the perpetrator obtained the legally possessed property of others through secret means, which should be recognized as theft. The author holds this viewpoint, and the specific analysis is as follows:

 

Firstly, Lin's behavior does not meet the constitutive requirements of the crime of fraud. The crime of fraud refers to the act of fraudulently obtaining property from others by fabricating facts or concealing the truth for the purpose of illegal possession. The common manifestations of fraud crimes are: the perpetrator commits deceptive behavior → the other party falls into or continues to maintain cognitive errors → the other party disposes (or delivers) property based on cognitive errors → the perpetrator obtains or causes a third party to obtain property → the victim suffers property losses.

 

The information about Lin's vehicle trading on the website in this case is true. The victim paid a reasonable price and actually obtained the vehicle. Although Lin concealed the true purpose of his vehicle trading, the victim did not dispose of his property incorrectly based on this purpose, nor did he cause any loss of property. In this case, Lin committed two acts, namely the "fraudulent sale" of vehicles sold on car websites and the theft of vehicles found through GPS systems. The previous "fraudulent sale" act can be seen as a preparatory act for Lin's subsequent theft. The crime of fraud and theft, as typical property crimes, the ultimate goal of the perpetrator is to achieve illegal possession of others' property. Although Lin's "fraudulent sale" behavior is essential in the entire criminal behavior, the key behavior to achieve possession of others' property is subsequent theft. Therefore, this case should be recognized as theft as a whole.

 

Secondly, having fraudulent behavior and obtaining the victim's property may not necessarily constitute the crime of fraud, and theft may also involve fraudulent behavior. For example, the perpetrator used the victim's phone to make a phone call on the grounds that they needed to borrow a bystander's phone in an emergency, and fled while they were not prepared. The perpetrator resorted to deception to gain the victim's trust, and the victim lent the phone to the perpetrator. However, the victim's true intention was not to transfer ownership of the phone to the perpetrator, but to temporarily lend the phone to the perpetrator for use. The perpetrator takes away the phone while the victim is not paying attention. The nature of this behavior is to secretly steal someone else's property, which meets the criminal constitutive requirements of theft and should be recognized as theft.

 

Thirdly, the key to distinguishing between fraud and theft is whether the victim disposes of property based on a misconception of the disposition of property. If the perpetrator engages in deceptive behavior, and although the deceived person has fallen into a misconception, the content of the misconception is not the disposal of property, and the deceived person has not suffered losses from the disposal of property as a result, the perpetrator's behavior does not constitute the crime of fraud, such as the case of fraudulently obtaining mobile phones mentioned above. I would like to give another example: A and B are neighbors. A knocks on the door of B's house and says to B, "Your child has fallen downstairs." B then pushes the door and exits, and A takes the opportunity to enter B's house and steal property. Obviously, Party B has fallen into a misconception due to Party A's language behavior, but Party B's misconception does not directly lead to losses in the disposal of property. The loss of property is caused by Party A's theft behavior, so Party A should be recognized as a crime of theft, not fraud. Some scholars believe that the existence or absence of delivery (punishment) behavior defines the boundary between fraud and theft, and this conclusion is not unreasonable.

 

Therefore, the author believes that in order to clarify whether the behavior of the perpetrator constitutes the crime of fraud or theft, it is necessary to analyze whether their behavior meets the criminal constitutive requirements of the crime, whether the perpetrator's behavior will lead to the victim disposing of property based on the wrong understanding of the disposal of property, and to consider the overall determination of the causes and consequences. The court in this case ultimately adopted the author's viewpoint to determine that Lin's behavior constitutes theft, which I believe is appropriate.