搶劫信用卡並使用行為的定性新探——以信用卡的財產價值為視角

A New Probe into the Qualitative of the Behavior of Robbing Credit Card and Using It--From the Perspective of the Property Value of Credit Card

有關司法解釋將搶劫信用卡並使用的行為定性為搶劫罪，學術界則對這種行為的定性爭訟紛紜。從法理上講，這種行為的定性首先需要在信用卡卡片、帳號兩個層面分開評價。搶卡行為完成之後，卡片層面的搶劫既遂。對帳號層面的搶卡行為與用卡行為的評價需要考慮帳號內有無存款，若有，則帳號為總的債權憑證，存款為分的債權憑證，取得分的債權憑證的行為性質由取得總的債權憑證的行為性質即搶劫決定；若無，則帳號沒有財產價值，帳號層面的搶卡行為是後續用卡行為的預備行為，用卡透支的行為是取得財產的行為，此時需要區分當場還是事後透支將用卡行為分別評價為搶劫罪或信用卡詐騙罪。搶劫借記卡並使用的，帳號層面的犯罪既遂以行為人通過交易取得存款或者現金法律佔有的外觀為標準。相關司法解釋對這種行為的定性在某些情況下有違罪刑法定原則，值得反思。

The related judicial interpretation had been determined the qualitative of the behavior of robbing credit card and using it as robbery, and the academic circles have different opinions on this behavior. Jurisprudentially, the qualitative of this behavior first needs to evaluate separately on two levels of the credit card and account. After credit card robbery, the card-level robbery had been accomplished. The evaluation of the behavior of grabbing credit card and using credit card on account–level needs to consider whether there are deposits in the account, if there are, the account number is total credit certificate, and deposits are the divided credit certificates, the nature of the behavior of obtaining divided credit certificates is determined by the nature of the behavior of obtaining the total credit certificate which is robbery; if not, the account has no property value, and the behavior of grabbing credit card on account–level is a preparatory behavior for subsequent behavior of using credit card, and the behavior of using the credit card to overdraw is the act of acquiring property, at this time, it is necessary to distinguish overdraft between on-the-spot and afterwards, and then evaluate the behavior of using credit card as crime of robbery or credit card fraud. For robbery and use of debit card, the standard of crime accomplished on account-level is that the actor had been obtained the appearance of deposit or cash legal possession through transaction. The nature of this kind of behavior given by relevant judicial interpretations violate the legal principle of criminal punishment in some cases, and it is worthy of reflection.