挂失取走银行账户内他人存款行为的定性分析

Qualitative Analysis of the Behavior of Reporting Loss and Withdrawing Deposits from Others’ Bank Accounts

摘要: 银行账户存款占有归属应分为存款现金和存款债权的占有归属，其中现金由银行占有并所有，债权由存款人享有。当持卡人与名义人不一致时，存款债权由实际存款人和名义存款人共同占有，实际存款人对于存款是事实上的占有，而名义存款人是法律上的占有。名义存款人若通过挂失、补办新卡等程序，擅自将存款转存为自己享有，应当构成盗窃罪，而不能认定为侵占罪或诈骗罪，其本质仍然是挂失行为直接导致原控制人对财物失去了控制，对于该行为性质的认定需要结合主客观双重因素。

Abstract: The ownership of deposits in bank accounts shall be divided into cash deposits and claims on deposits. The cash shall be owned by the bank and claims shall be enjoyed by the depositors. When the cardholder and the nominal person are inconsistent, the deposit claim is jointly owned by the actual depositor and the nominal depositor. The actual depositor has the actual possession of the deposit, while the nominal depositor has the legal possession. If the nominal depositor arbitrarily transfers the deposit for his own enjoyment through reporting the loss, reissuing a new card and other procedures, it should constitute a crime of theft, but cannot be identified as a crime of embezzlement or fraud. Its essence is still that the behavior of reporting the loss directly causes the original controller to lose control of the property, and the identification of the nature of the behavior needs to combine subjective and objective factors.