Dehehantong lawyer successfully represented the theft case - changing the qualitative does not constitute a crime, the suspect is not arrested because of insufficient evidence
As one of the two most common property crimes, the distinction between theft and fraud has long been controversial in practice and theory. The particularity of this case lies in the fact that different charges directly affect whether a crime is constituted. This case by Dehe Hantong Law Office senior partner Chen Shilei lawyer, partner Zheng Chen lawyer as the defense, after the intervention directly from the case qualitative defense, in the unremitting efforts to successfully change the charges, so that the suspect released in time.
1. Basic Facts
Zhang XX has been engaged in credit card related business for a long time, promoting that it can help others increase the credit card limit, the victim contacted Zhang XX to meet offline through mobile phone operation, Zhang XX in the process of raising the amount, lied that he needed to brush off part of the credit card points to achieve the increase in the amount, Zhang XX in the operation process, the points exchanged for goods as his own, a total of five victims, The total value is about 2,000 yuan.
Public security organs for theft of Zhang Mou criminal detention, that the theft of other people's credit card points, has reached the filing standards, and reported to the people's procuratorate for approval of arrest.
2. Controversial issues
Is Zhang guilty of theft or fraud?
The core difference between the crime of fraud and the crime of theft lies in whether the deceived has the behavior of property disposal. Larceny is a crime of seizure, in which the property is transferred against the intention of the owner. The crime of fraud is based on the victim's meaning defect transfer property possession.
After the lawyer intervened, he believed that the victim in this case was actually aware of the fact that Zhang XX swiped his credit card points, but mistakenly thought that this was a necessary step to increase the credit card limit, and the victim voluntarily made a property disposal behavior based on the wrong understanding of Zhang XX swiped his credit card points, resulting in property losses. Zhang's behavior is fully in line with the crime of fraud to fabricate facts to conceal the truth, causing the victim to make a wrong property disposition of the elements. Therefore, the fraud carried out by Zhang.
Third, difficulties in the case
1. If the suspect is in the probation period, he will be arrested and his probation will be revoked if he constitutes a crime
Zhang was sentenced in March 2024 to one year in prison, suspended for two years, for theft. During the probation period at the time of the case, although the amount of the crime is small and the circumstances of the crime are relatively minor, as long as the crime is constituted, the probation will be revoked and several crimes will be punished together.
2, meet the standard of multiple theft, if it can not change the qualitative, regardless of the amount constitutes theft
Although the value of credit card points taken by Zhang is low each time, because he has carried out this behavior five times in a few months, if it is characterized as theft, it meets the standard of multiple theft, and the defense from the point of view of the amount cannot play a substantial effect, and only by changing the qualitative effect can he obtain innocence.
3, the amount of crime is less, the change of charges will directly lead to innocence, and the defense resistance is great
Because the amount of the crime in this case is less, the filing standard for fraud is 3,000 yuan, and the standard for a single theft is 2,000 yuan, if the case is changed, then Zhang XX should not constitute a crime. Therefore, the lawyer encountered great resistance in the defense process, since accepting the commission has been insisting on communicating with the host police, searching a large number of cases and professional articles to explain the difference between fraud and theft, and repeatedly submitted written opinions of innocence defense, but the public security organs still insist on reporting the theft to the procuratorate for approval of arrest, in this case, the host lawyer did not give up. After the arrest, he still communicated with the prosecutor for many times, fully explained the issue and submitted written defense opinions, and finally all defense opinions were adopted, successfully changed the charges to fraud, and the procuratorate made a decision not to arrest.
This case fully reflects the diligence, ingenuity and extreme working attitude of lawyer Dehe Hantong, successfully safeguarding the legitimate rights and interests of the parties, and sparing no efforts to make the clients regain their freedom.
