供卡人掐卡、取款的行為性質

The Nature of Card Provider's Conduct of Cutting off and Withdrawing of the Bank Card

在供卡人將銀行卡提供給實際用卡人正常使用（用卡人不利用銀行卡實施違法犯罪行為）的情形下，供卡人以非法占有為目的，違反用卡人的意志掛失舊卡補辦新卡（掐卡）的行為，成立盜竊罪；即使沒有取款也成立盜竊罪的既遂，盜竊對象是“可以隨時取款或轉帳”這一財產性利益。在供卡人將銀行卡提供給用卡人用於電信詐騙（非共同犯罪）等場合，供卡人違反用卡人意志實施的掐卡行為，雖然符合財產罪的構成要件，但由於提高了電信詐騙被害人挽回財產損失的可能性，存在違法性阻卻事由，不應當作為財產罪處理。供卡人掐卡後以非法占有為目的的取款行為構成財產罪；該取款行為並非盜竊了電信詐騙犯的財產（不是所謂“黑吃黑”），而是侵害了銀行管理者對現金的占有與所有，因而應根據取款行為的性質分別認定為盜竊罪與詐騙罪。

In the case that a card provider provides the bank card to an actual card user for normal use, that is, the card user does not use the bank card to carry out illegal criminal activities, while the card provider with the purpose of illegal possession, against the will of the card user, reports the loss of the old card and replaces it with a new card (hereinafter referring to as ''cutting off the card''), the nature of the card provider's conduct shall establish the crime of theft. Even if there is no withdrawal of money from the bank card, the card provider shall complete the crime of theft, and the object of theft is the proprietary interests that money can be withdrawn or transferred from this bank card at any time. In the case that a card provider provides the bank card to an actual user for telecom fraud (non－joint offenders) and other crimes, if the card provider against the will of the card user cuts off the card, the nature of the card provider's conduct shall not be treated as a property crime, even though this cutting off conduct is in line with constituent elements of the property crime, but it is also improving the possibility of victims to recover their property losses of such telecom fraud, so there is legitimate offense to prevent the illegality of this conduct. In the case that a card provider cuts off the card, then withdraws money from this bank card with the purpose of illegal possession, the nature of the card provider's conduct shall establish relevant property crime. The nature of conduct of withdrawing money for the bank card does not infringe the property of the telecom fraudster (not the so－called ''black eat black''), but do infringe the possession and ownership of the money in cash registered within the bank card which is under the bank management, so it should be identified as the crime of theft or the crime of fraud according to the nature of the withdrawing conduct.