陈新

2001年9月20日晚8时许，被告人张某在其母经营的“海洋书屋”中接待还书的顾客李某后，发现书中夹有一张活期存折，即将存折抽出藏在身上，没有告诉其母等人。随即前往某农业银行取款，由张某持户名为李某的活期存折填写取款凭证，冒领了人民币5000元。当日，李某发现自己因疏忽大意把夹于书中的存折随书一起还给书屋，便于次日来到书屋查找。张某之母因不明真相，答复李某没有此事。9月21日，被告人张某得知李某报案后，即以化名将人民币5000元邮寄给本市公安局。9月25日，张某被公安机关查获，钱款已发还失主。

对于张某的行为如何定性问题，在当时办理案件过程中形成了三种不同的意见。第一种意见认为，张某的行为不构成犯罪，属于不当得利，应承担民事责任；第二种意见认为，张某藏匿他人遗忘物的行为构成盗窃罪；第三种认为，张某假冒他人的名义骗领钱财，应构成诈骗罪。笔者同意第三种意见，因为：

第一、民法上的不当得利，是指没有法律或合同的根据，取得不当利益，并造成他人的财产损失。从主观上讲，不当利益的受益人不具有过错，往往是受损人一方自己的过错造成财产损失。不当利益的受益人在取得不当利益之前，不具有非法占有他人财产的故意，即使是恶意的，也只是在取得不当利益之时，明知没有合法根据而接受利益，没有实施积极主动的违法行为。而本案的案情并非如此。被告人张某是在特定场所具有特定身份的人员，对他人还书时遗忘于书中的存折负有保管的责任，但他在发现存折后当即藏匿，随即去冒领存款，主观上有非法占有他人财产的故意，客观上实施了骗取他人钱款的行为，显然不符合不当得利的法律特征。

第二、盗窃罪和诈骗罪在主观上都具有非法占有他人钱财的故意，但两罪的客观行为特征明显不同。盗窃罪的客观要件是秘密窃取他人财物；诈骗罪的客观要件则是虚构事实，隐瞒真像，从财物的所有者、持有者、保管者手中骗取财物。本案李某因疏忽大意误将存折夹在书中连同书一起归还被告人张某所在的书屋，张某虽然将其藏匿，但存折持有关系的改变，毕竟不是张某秘密窃取所致，而是存折所有人疏忽大意所致。因此，如果没有继后的冒名领取现金的行为，仅就这一情节而言，虽属违法，但尚不构成犯罪。张某的行为所以构成犯罪，主要是因为他到银行以存折所有人的名义填写取款凭条，虚构自己是财产所有人的事实，冒领了他人钱财并据为已有。这种行为完全符合诈骗罪的客观要件，构成诈骗罪。

此案后经审理认为，张的行为已构成诈骗罪，考虑到张某能在犯罪后主动退出诈骗的钱款，认罪悔过，予以从轻判处拘役六个月，缓刑一年。

Chen Xin

At around 8:00 pm on September 20, 2001, the defendant Zhang received a returning customer named Li from his mother's "Ocean Bookstore" and found that there was a current passbook in the book, which he was about to withdraw and hide on his body, without informing his mother and others. Immediately went to a certain Agricultural Bank to withdraw funds, and Zhang filled out the withdrawal voucher with a current account book named Li, falsely claiming RMB 5000. On that day, Li found out that he had accidentally returned the passbook sandwiched in the book to the bookstore, so that he could search for it the next day. Zhang's mother replied to Li that there was no such matter as she was unaware of the truth. On September 21st, the defendant Zhang learned that Li had reported the case and immediately mailed RMB 5000 under pseudonym to the local public security bureau. On September 25th, Zhang was seized by the public security organs and the money was returned to the owner.

There were three different opinions on how to characterize Zhang's behavior during the handling of the case at that time. The first opinion holds that Zhang's behavior does not constitute a crime and belongs to unjust enrichment, and should bear civil liability; The second opinion holds that Zhang's act of hiding something forgotten by others constitutes theft; The third type believes that Zhang falsely claiming money in the name of others should constitute the crime of fraud. I agree with the third opinion because:

Firstly, improper enrichment in civil law refers to obtaining improper benefits without legal or contractual basis and causing property damage to others. Subjectively speaking, the beneficiaries of improper interests are not at fault, and it is often the fault of the injured party that causes property damage. The beneficiary of improper benefits does not have the intention to illegally occupy the property of others before obtaining the improper benefits. Even if it is malicious, it only accepts the benefits knowing that there is no legal basis and does not engage in proactive illegal behavior when obtaining the improper benefits. And this is not the case in this case. The defendant, Zhang, is a person with a specific identity in a specific place and bears the responsibility of keeping the passbook that was forgotten in the book when someone returned it. However, he immediately hid the passbook after discovering it and immediately went to falsely claim the deposit. Subjectively, he had the intention of illegally occupying someone else's property, and objectively, he committed the act of defrauding someone else's money, which clearly does not conform to the legal characteristics of unjust enrichment.

Secondly, both theft and fraud subjectively have the intention to illegally occupy someone else's money, but the objective behavioral characteristics of the two crimes are significantly different. The objective requirement of the crime of theft is to secretly steal the property of others; The objective element of the crime of fraud is to fabricate facts, conceal the truth, and deceive the owner, holder, and custodian of property. In this case, due to negligence, Li accidentally returned the passbook together with the book to the bookstore where the defendant Zhang was located. Although Zhang hid it, the change in the ownership relationship of the passbook was not caused by Zhang's secret theft, but by the negligence of the passbook owner. Therefore, if there is no subsequent act of claiming cash under the guise, in this case alone, although it is illegal, it does not constitute a crime. Zhang's behavior constitutes a crime mainly because he went to the bank to fill out a withdrawal receipt in the name of the passbook owner, fabricated the fact that he was the property owner, and falsely claimed other people's money as his own. This behavior fully meets the objective requirements of the crime of fraud and constitutes the crime of fraud.

After the trial of this case, it was found that Zhang's behavior constituted a crime of fraud. Considering that Zhang could voluntarily withdraw from the defrauded money after the crime, he confessed and repented, and was given a lenient sentence of six months of detention and one year of probation.