Xu Ting's judgment

Guangzhou Intermediate People's Court of Guangdong Province

criminal judgement

(2008) Sui Zhong Fa Shuang Zi No.2

The public prosecution organ is the People's Procuratorate of Guangzhou City, Guangdong Province.

Defendant Xu Ting, male,1born on February 7, 1983, Han nationality, from Xiangfen County, Shanxi Province, with high education level, lives at No.3, Lane 4, Xiangyang West Road, Guojiazhuang Community, Yaodu District, Linfen City, Shanxi Province. On suspicion of committing theft, he was detained in criminal detention on May 22, 2007, detained in criminal detention on June 5, 2007 and arrested in July 1 1. He is currently being held in Tianhe District Detention Center in Guangzhou.

Defenders: Yang Zhenping and Wu Yichun, lawyers of Guangdong Jinglun Law Firm.

The People's Procuratorate of Guangzhou City, Guangdong Province accused the defendant Xu Ting of theft with Suier v. (2007)No. 176, and filed a public prosecution with our court on June 5438+1October 5, 2007. Our court formed a collegial panel according to law and heard the case in public. On1October 20th, 2007, 165438+ made the criminal judgment (2007)No. 196, and the defendant Xu Ting appealed. On June 9, 2008, Guangdong Higher People's Court made a criminal ruling (2008) No.5, revoking the original judgment and remanding it for retrial. In accordance with the law, our court separately formed a collegial panel to hear the case in public. Guangzhou Municipal People's Procuratorate appointed prosecutor Tan and attorney to appear in court to support the public prosecution, and the defendant and his defenders Yang Zhenping and Wu Yichun attended the proceedings. The trial is now over.

The People's Procuratorate of Guangzhou City, Guangdong Province accused: On April 2, 2006, the defendants Xu Ting and Guo Anshan (handled separately) fled to the ATM of Guangzhou Commercial Bank on Xipingyun Road, Huangpu Avenue, Tianhe District, Guangzhou, and took advantage of the upgrade of the banking system to withdraw money from the ATM several times. On April 22nd, Xu Ting * * * withdrew cash175,000 yuan. After that, he fled with the money. The court read out and produced the report statement of the injured unit, the testimony of witnesses Huang Moumou, Lu Mou and Zhao Moumou, the arrest process issued by the public security organ, the bank account opening materials, transaction records, running accounts, surveillance video CDs, confessions of Guo Anshan and Xu Ting provided by the injured unit and other evidence. On this basis, it is considered that the defendant Xu Ting stole financial institutions for the purpose of illegal possession, and the amount was extremely huge, and his behavior has been violated? The Criminal Code of People's Republic of China (PRC)? The provisions of Item (1) of Article 264 constitute theft, and are submitted to our court for punishment according to law.

Defendant Xu Ting had no objection to the facts accused by the public prosecution agency during the trial, but argued: 1. After discovering that the ATM machine was abnormal, he took out all the money to protect the bank property and prepared to hand it over to the unit leader. Second, banks are also responsible for the failure of ATMs.

The defense opinions put forward by the defender are as follows: 1. The facts of this case are unclear and the evidence is insufficient. The reasons are as follows: 1. Defendant Xu Ting only remembered that there was more than RMB 170 in his bank card, and the exact amount was unclear. The proof that his account balance is 176.97 yuan is only the account running list issued by the bank, and there is no other evidence to prove it. 2. The time and sequence of the journal records are wrong. 3. It is not clear why there is an error in the ATM of the bank. Therefore, this case cannot draw the inevitable conclusion that Xu Ting's account only has 176.97 yuan, and every withdrawal of 1 000 yuan only deducts 1 yuan from the account. Two, the defendant Xu Ting's behavior does not constitute a crime, retrial and acquittal. Now it is as follows; 1. Xu Ting used his real-name salary card to withdraw money from a monitored ATM without tampering with the password or destroying the machine function. His behavior is public to the bank, not secret. Xu Ting's withdrawal is paid with the consent of ATM, and its behavior is a legitimate, legal and authorized transaction. Therefore, Xu Ting's behavior does not conform to the objective characteristics of theft and does not constitute theft. 2. Xu Ting withdraws money through the normal operation of ATM machines, and there are no financial institutions in physical space and virtual space. Therefore, Xu Ting's behavior cannot belong to the theft of financial institutions. 3. Xu Ting's possession is intentionally induced by the wrong program of ATM machine, which is accidental; The probability of abnormal ATM is extremely low, so Xu Ting's behavior cannot be copied or imitated. In this case, the loss of the injured unit has been compensated, and Xu Ting's behavior is obviously less harmful to society. The existing criminal law does not clearly stipulate the behavior in this new form of case, and the law does not expressly stipulate that it does not constitute a crime, so it should be declared innocent. 4. Xu Ting's behavior belongs to unjust enrichment in civil law, and the problem of returning the property obtained from such unjust enrichment should be solved through civil litigation.

It was found through trial that at about 2 1 on April 2, 2006, the defendant Xu Ting went to the ATM of Guangzhou Commercial Bank at Xipingyun Road 163, Huangpu Avenue, Tianhe District, Guangzhou to withdraw money, and his colleague Guo Anshan (sentenced) was waiting nearby. Xu Ting is going to withdraw 100 yuan with a bank card without overdraft function, and the balance is 176.97 yuan. At 2 1: 56 that night, Xu Ting accidentally entered an instruction to withdraw 1000 yuan at the ATM, and the ATM immediately issued 1000 yuan. Upon inquiry, Xu Ting found that there was still more than RMB 170 in his bank card, and realized that the ATM of the bank was abnormal, so he could withdraw money beyond the account balance, and could not deduct the money truthfully. Xu Ting then used his bank card to withdraw money from the ATM1:57 to 22:00, 23: 00 to 19, and 0: 26 to 1: 06 the next day. After Xu Ting informed Guo Anshan that the ATM machine was abnormal, Guo Anshan also used the same method to withdraw 19000 yuan. On the afternoon of 24th of the same month, Xu Ting absconded with money.

Guangzhou Commercial Bank found that the defendant Xu Ting's account transaction was abnormal, and contacted Xu Ting and his relatives for a refund, but failed. Reported the case to the public security organ on April 30, 2006. After the public security organs put the case on file, Xu Ting was listed as a criminal suspect. On May 22nd, 2007, Xu Ting was arrested and brought to justice in Baoji City, Shaanxi Province. After the incident, Xu Ting and his relatives repeatedly contacted the bank and the public security organs, expressing their willingness to repay the losses of the bank, but at the same time demanding that Xu Ting not be held criminally responsible. So far, Xu Ting has not returned the stolen money.

It is also found that on April 2 1 day 17, 2006, a company in Guangzhou, an operator, upgraded the ATM involved. April 22nd and 23rd are weekends. On the morning of April 24th (Monday), Guangzhou Commercial Bank conducted routine inspection on the off-bank automatic cabinet machines of the whole bank. If the machines were abnormal, it informed the operators to conduct on-site inspection. After verification, it is found that the ATM system is abnormal after upgrading, and the withdrawal transaction below 1000 yuan (excluding 1000 yuan) is normal; For the withdrawal transaction exceeding 1000 yuan, each withdrawal of 1000 yuan forms a transaction message according to 1 yuan and submits it to the bank host, that is, the cardholder inputs the instruction to withdraw 1000 yuan, and the ATM issues 1000 yuan, but the cardholder actually deducts/kloc-.

The above facts are confirmed by the following evidence submitted by the public prosecution agency, and have been cross-examined and certified by the court:

1. The circular statement issued by Guangzhou Commercial Bank confirmed that on the morning of Monday, April 24, 2006, the ATM management center of Hengfu Branch of Guangzhou Commercial Bank found that the off-bank ATM installed at Xipingyun Road 163, Huangpu Avenue had an abnormal withdrawal transaction on the evening of April 2 1 and was notified. According to the log, the ATM withdrawal transaction is normal when it is below 1 0,000 yuan (excluding 1 0,000 yuan), but for the withdrawal transaction exceeding 1 0,000 yuan, the ATM forms a transaction message and submits it to the bank host according to the amount of 1 yuan. The reason for this is that the operator made a transaction on April 26, 2006. Upon verification, it was found that from April 2 1, 2 1: 56 to April 22 12: 34, someone held a debit card of Guangzhou Commercial Bank. The card numbers are 622467313100323003, 62246731310086217438 * * the amount involved 193806 yuan. In addition, two customers with card numbers of 6224673131003532503 and 955980081451094718 made two withdrawals, involving an amount of 218. After receiving the report, the banking supervision and security department searched Xu Ting's account information and found his work unit. The person in charge of the security department of the unit reported that on the afternoon of April 24th, Xu Ting suddenly asked for leave to go back to his hometown in Shaanxi, and no one answered his cell phone. Contact Xu Ting's work guarantor to ask for help to inform Xu Ting of the refund, but it failed, so he reported the case.

2. The Registration Form for Accepting Criminal Cases issued by the Economic Crime Investigation Detachment of Guangzhou Public Security Bureau, the Registration Form for Accepting Criminal Cases issued by Xiancun Police Station of Tianhe Branch of Guangzhou Public Security Bureau, and the Statement on the Investigation of Cash Theft from ATM of Guangzhou Commercial Bank confirmed that Guangzhou Commercial Bank reported the case to the Economic Crime Investigation Detachment of Guangzhou Public Security Bureau on April 30, 2006 and transferred it to Tianhe Branch of Guangzhou Public Security Bureau on May 26 of the same year. In the same month, after the bureau filed a case, it was confirmed. In the same year,165438+1October 12, the investigators of this bureau went to Linfen City, Shanxi Province to look for their father Xu Moumou. Xu said that Xu Ting didn't go home, and only spoke to his family once by phone, but didn't say where he was. The investigators of the bureau explained the theft of money from the bank teller machine to Xu Moumou and asked him to persuade him to surrender himself as soon as possible and refund the money. At that time, he asked if he could not pursue it if he returned the money. After Xu Ting was arrested, Xu Ting's father called the investigators of the bureau and offered to help Xu Ting get a refund, but asked the public security organs not to pursue Xu Ting's legal responsibility and release Xu Ting. The investigator rejected Xu Ting's father's request. After Xu Ting was brought back to Guangzhou, Xu Ting's mother also contacted the investigator and offered to return the stolen goods for Xu Ting. However, a few days later, she said that Xu Ting's behavior was not theft and refused to return the stolen money. Since then, Xu Ting's relatives have not contacted Xu Ting to return the stolen money.

3. The arrest process issued by Baoji Station Police Station of 3.Xi Railway Public Security Bureau and the arrest description issued by Xiancun Police Station of Tianhe Branch of Guangzhou Public Security Bureau confirmed that the defendant Xu Ting was arrested by public security personnel when he entered the station in Baoji City, Shaanxi Province on May 22, 2007, and was brought back for review by Tianhe Branch of Guangzhou Public Security Bureau.

4. Witness Huang Moumou (Deputy Manager of Supervision and Security Department of Guangzhou Commercial Bank) testified that on April 24, 2006, the ATM management center of Hengfu Branch of Guangzhou Commercial Bank found that the ATM installed at Road 163 had an account deduction of 1 yuan in the withdrawal transaction on April 2 1 day. Because the ATM withdrawal amount of this bank is 100 yuan or an integer multiple of 100 yuan, it is impossible to have an amount below 100 yuan, so Hengfu Sub-branch immediately informed the ATM operator of the situation. Subsequently, the operator and the personal banking department of the commercial bank sent people to the ATM located at Yunping Road 163 for on-site startup inspection, and found that all the cash in the ATM had been taken out. Check the operation log of ATM immediately, and find that ATM is normal (excluding 1 1,000 yuan) when the withdrawal transaction does not exceed 1 1,000 yuan, and the withdrawal transaction above 1 1,000 yuan is abnormal. For the withdrawal transaction of more than 1 1,000 yuan, ATM generates a transaction message and submits it to the bank host according to the amount of 1 1,000 yuan, that is. The reason for this situation is that the operator upgraded Yunping Road 163 ATM system at 07: 00 on April 2, 2006. At around 0: 00 on April 265438+ 17: 00, the bank put RMB 200,000 into the ATM, and the withdrawals of several customers were normal before the incident. After audit, the total amount of short money for ATM machines is 196004 yuan. Upon verification, it was found that customers with card numbers of 62246731310032303 and 6224673 13 100803 downloaded from 2 1365438 on April 22nd. Upon inquiry of account opening information, the account name of the bank card with card number 622467313100323303 is Xu Ting, and the account opening date is February 6, 2006. According to Xu Ting's account information, he and Lu, then manager of personal banking department, found the work unit in Xu Ting. Minister Zhao of the unit reported that on the evening of April 23, 2006, he told him to go home to take the civil service exam, and even packed his clothes and left without going through the formalities. So they asked Minister Zhao to contact, but after the phone call, Minister Zhao said that he had turned off his phone and said that he had contacted by text message before. The general content is that Minister Zhao asked him to come back to go through the formalities, and there was still a sum of money to settle for him, but when he said no, they asked Mr. Liu, a new employee contacted by Minister Zhao. The other party promised to meet and talk on the phone, but later refused to meet, saying that they didn't want to intervene in this matter. When they contacted the person in charge in Xu Ting, they told Xu Ting about the malicious withdrawal. He has never received a phone call from Xu Ting himself or his family, and no one has contacted him about this matter. On April 30th, the bank reported the case to Guangzhou Public Security Economic Investigation Detachment.

5. The testimony of witness Lu Mou (Deputy General Manager of Business Management Department of Guangzhou Commercial Bank) confirmed that on the morning of April 24, 2006, Guangzhou Commercial Bank found that someone took advantage of the failure of the off-line teller machine at Yunping Road 163 Bank on the evening of April 24, 2006 and made several malicious withdrawals. By inquiring about the cardholder information of this machine, it is found that one of them is a cardholder. The abnormal situation of ATM is a withdrawal transaction exceeding 1 1,000 yuan, and ATM only forms a transaction message according to the amount of 1 yuan and submits it to its host. That is, the cardholder inputs the withdrawal of 1 000 yuan, and the ATM also withdraws 1 000 yuan, but the cardholder's account is actually debited 1 yuan. The above abnormality was caused by the operator upgrading the ATM system on April 2, 20061Day 17. On the afternoon of April 24th, 2006, he and Huang of the bank security department found the work unit in Xu Ting according to the card opening information. Minister Zhao of the security department of the unit reported that he had gone home to take the civil service exam. During this period, Minister Zhao dialed the telephone number, but did not answer it. Instead, he sent a short message to Minister Zhao, saying that he had gone home. About a month after the incident, a man who claimed to be Xu Ting called him to discuss how to deal with the matter, and said that because the money was stolen, he didn't have that much money to pay back, and he could only pay back about half. At that time, he said he hoped to pay it all off, but the other party said it was definitely unclear, only about half at most. He told the other party that he hoped that he would surrender to the public security organ as soon as possible and handle the matter well, and then the other party hung up. In February or March 2007, a man who claimed to be the Minister of Security called to discuss the affairs in Xu Ting. At that time, he explained to the other party that he had been transferred from his original post and asked the other party to contact the bank security department.

6. The testimony of the witness Zhao Moumou (the head of the security department of a property company in Guangzhou) confirmed that Xu Ting was the security guard of the unit. On the morning of April 24th, 2006, Xu Ting resigned on the grounds that he would go back to his hometown in Shaanxi to take the civil service exam. On the afternoon of April 24th, the staff of Guangzhou Commercial Bank asked him about Xu Ting. He remembered that Xu Ting's phone seemed to have been dialed, but no one answered. Then, he sent a short message to Xu Ting on his mobile phone, asking him to come back and settle his salary, or left his contact information for him to send. At that time, Xu Ting replied that he didn't want his salary. About a month later, Xu Ting called and said that life was completely out of order and he couldn't go home. He said that he still wanted to return the money to the bank, but he also said that the money was stolen by 50,000 yuan and spent more than 1 10,000 yuan. He is willing to return the money if the bank is willing. He gave Xu Ting the phone number of the bank manager Lu, but about 20 minutes later, he called again. The content probably says that the bank has reported the case and will go to jail even if the money is returned. Then he said forget it, wait until he caught it, and then hung up. Since then, Xu Ting has never contacted him again. In the first half of 2007, my guarantor Liu found himself and said that his family wanted to refund the money and wanted to give him a chance. He said at that time that he would contact the bank, and Liu immediately got in touch with Lu of the bank. Lu said that he had been transferred from the original department and asked Liu to find someone at the headquarters of a commercial bank. Liu asked how to get there, but it is not clear whether he found a bank later. In addition, on April 24, 2006, Xu Ting sent him a message with a new mobile phone number, and later called him twice with the same number.

Zhao identified the photos and pointed out that the defendant was the security guard of his unit.

7. The account opening information of the defendant Xu Ting provided by Guangzhou Commercial Bank confirmed that Xu Ting opened an account on February 6, 2006 with the account number102457023100018, and a copy of his ID card was reserved.

8. The complete running record data provided by Guangzhou Commercial Bank and the details of the account withdrawal transactions involved confirmed that the bank card with the card number of 6224673131003233003 was inserted on April 2, 2006/:56: 03, and 21:56: 6544. 2 1: 57: 2 1 sec to 2220: 2 1 sec * * instructions to withdraw money for 55 times, each time 1000 yuan, of which the last transaction failed, * * * counted as 54,000 yuan; Insert the card at 2300 hours 12 minutes and 57 seconds, from 2300 hours to 2300 hours 19 minutes and 59 seconds * * Withdraw money 16 times, each withdrawal is 1000 yuan, * * is counted as withdrawal 16000 yuan; The card was inserted at 23: 23: 05, and was ordered to withdraw cash at 23: 23: 33 1 0,000 yuan. The transaction failed and no money was withdrawn; The next morning, the card was inserted at 0: 26: 04, and withdrawals were made from 0: 26: 22 to 1: 06: 22 * * 100. The first 96 withdrawals are 1000 yuan each time, and the last four withdrawals are 2000 yuan each time, and * * is 104000 yuan.

9. The account running list provided by Guangzhou Commercial Bank confirmed that on April 2, 20061day, the bank card with the card number of 6224673131003233003 (the account name was Xu Ting, and the account number was102457023/KLOC-

10. The Explanation on the Transaction Date Switching Mechanism of Guangzhou Commercial Bank's Integrated Business System confirms that the Bank's integrated business system starts day-end processing at around 23: 00 every night, and the system bookkeeping date is switched at the same time. After the system accounting date is switched, the new accounting date is used as the accounting transaction date.

1 1. The photo of the ATM of Guangzhou Commercial Bank, located atNo. Xipingyun Road 163, Huangpu Avenue, Guangzhou, was identified by the defendant Xu Ting and confirmed as the withdrawal place.

12. The CD-ROM of bank surveillance video provided by Guangzhou Commercial Bank and the screenshot of bank surveillance video signed by defendant Xu Ting confirmed that Xu Ting and Guo Anshan withdrew money from the ATM involved on April 2 1 22, 2006.

13. On May 2, 20071day, the Tianhe District People's Court of Guangzhou issued the criminal judgment No.560 (2007), which confirmed that Guo Anshan and Xu Ting made many withdrawals from the bank from April 2, 20061day to April 22, 2006 by taking advantage of the errors in the ATM system of Guangzhou Commercial Bank. Tianhe District People's Court sentenced Guo Anshan to one year's imprisonment for theft and fined him 1000 yuan.

14. The details of the permanent population and the survey reply form issued by Beicheng Police Station of Economic and Technological Development Branch of Linfen Public Security Bureau in Shanxi Province confirmed the identity of the defendant Xu Ting.

15, Guo Anshan's confession and the defendant Xu Ting's identification record confirmed that on April 26th, 2006, at around 26: 438+0, Xu Ting withdrew money from the ATM of Guangzhou Yunping Road Commercial Bank. He waited across the street and didn't come back after a long time. Confused, he went to Xu Ting and called his name after meeting Xu Ting. It's strange to see Xu Ting's wallet full of money and his clothes pocket full of money in the dormitory, because Xu Ting said that his card was only 100 yuan and he could only withdraw 100 yuan, so he asked him. At first, Xu Ting refused to say anything. Later, he said that he only wanted to withdraw 100 yuan, but he pressed another "0", and the ATM really spit out 65,430 yuan. Seeing that Xu Ting's money was about 40,000 to 50,000 yuan, he was also very excited, so he went back to the ATM with Xu Ting to withdraw money. Upon arrival, Xu Ting took out the money first, because he seldom used the ATM, so he asked Xu Ting to teach him how to use it. After withdrawing 1 10,000 yuan or 20,000 yuan in Xu Ting, he inserted one of his agricultural bank cards into the ATM to withdraw money. Xu Ting taught him to withdraw money, and he really withdrew 3,000 yuan, but his card was only over 860 yuan, but he couldn't withdraw 1 1,000 yuan for the fourth time. After that, the two went back to get the plastic bag and returned to the scene again. First, they took out 5000 yuan with their own agricultural bank card, and then they couldn't take it out. Then Xu Ting took it, took a lot of money and stopped for nearly an hour. After that, he tried several times and couldn't get the money, so he went back to rest. The next day, he got a fake ID card under the pseudonym of Liu Yang and used it to open a commercial bank card. At noon that day 12, he took a commercial bank card to the above-mentioned teller machine to withdraw money and took out about 10000 yuan. After that, he couldn't get any more money and left. When I saw him later, Xu said it was too dangerous to resign and stay. Later, he also resigned and returned to his hometown in Hubei. Both he and Xu Ting were security guards. Xu Ting took about170,000 yuan and180,000 yuan and didn't give them the stolen money.

After identifying the photos, Guo Anshan identified the defendant Xu Ting as the person who withdrew money from the ATM of Yunping Road 163 Commercial Bank on the evening of April 2, 2006.

16. The confession of defendant Xu Ting and Guo Anshan's identification record confirmed that on April 2, 2006, at about 2 1 pm, he went out with Guo Anshan to withdraw money from the ATM of a commercial bank near Yunping Road in Guangzhou, and Guo Anshan waited nearby. Its Guangzhou commercial bank card is a salary card, with only 100 yuan in it. He inserted his commercial bank card and tried to withdraw 100 yuan, but somehow he pressed a "0" and the ATM machine spit out 1000 yuan. He felt incredible at that time, and immediately checked the balance of his card, but the money was still so much that he took it several times at 1000 yuan each time, totaling * *. Because it took a long time to withdraw money, Guo Anshan couldn't wait to come and find it. It's strange to see him take so much money. When he asked what had happened, he told him the whole story himself. After that, the two returned to the dormitory and took out the money. Guo Anshan was very moved and asked him to help him withdraw money. So at about 23 o'clock that night, he and Guo Anshan returned to the ATM and used their commercial bank cards to withdraw 1 10,000 yuan. After that, Guo Anshan used his agricultural bank card to withdraw 3000 yuan, but due to transaction restrictions, they could not withdraw money. They went back to the dormitory. At 0: 00 the next day, he returned to the ATM with a plastic bag and Guo Anshan. Guo Anshan used his card to withdraw thousands of dollars, and he couldn't take out any more money. He then used his bank card to withdraw money for a long time and took out about 654.38+10,000 yuan. After that, Guo Anshan tried to withdraw money with his card, but they still couldn't withdraw money, so they went back to the dormitory. A * * * took 174000 yuan. He has never tried to have so much money that he is blind. He knew it was wrong, but he was lucky. He has been regretting it since it was finished. I went to work normally the next day after the withdrawal, and returned to Shanxi by car at 3 pm on April 24, and left without saying hello to the company leader. After returning to Linfen, Shanxi, he found that 50,000 yuan wrapped in a newspaper and stuffed in a quilt was gone, so he didn't go home and stayed in a hotel. Later, I was afraid to go home. I stayed in Linfen for a month, and then went to Taiyuan with my friends to open an Internet cafe, with an investment of 65,438+10,000 yuan. Later, this internet cafe lost money.

After identifying the photos, the defendant Xu Ting identified Guo Anshan as the person who withdrew money from the ATM in Yunping Road, Guangzhou on April 2 1 2006.

For the defense and defense opinions of the defendant Xu Ting and his defenders, our court made the following judgment:

1. Regarding the defender's opinion that the facts of this case are unclear and the evidence is insufficient, after investigation, firstly, it is confirmed that the balance of the defendant Xu Ting's bank card account was 176.97 yuan, and during the incident, * * * successfully withdrew money 17 1 times, of which 65438. Xu Ting * * * withdrew 175,000 yuan, and the actual * * * was deducted from the account175 yuan. The bank surveillance video confirmed that Xu Ting and Guo Anshan withdrew money from the ATM involved, and the time recorded was consistent with the complete operation record data and the time recorded in the account operation list. In addition, the confessions of Xu Ting and Guo Anshan also confirmed that Xu Ting's account balance was only 170 yuan before the withdrawal, but he withdrew 170 yuan from the ATM involved. Secondly, the statement issued by Guangzhou Commercial Bank confirmed that the company switched the bookkeeping date after 23: 00 every day, which caused the account journal to record the withdrawal date after 23: 00 as the next day, so some records were wrong in time and order. Thirdly, the written report of Guangzhou Commercial Bank and the testimony of its staff Huang Moumou and Lu Mou confirmed that the abnormality of the ATM involved was caused by the system upgrade. The abnormal situation is that the cardholder instructs to withdraw 1 1,000 yuan, and the ATM also gives one second 1 1,000 yuan, but the cardholder actually debits 1 yuan. The above evidence can mutually confirm the account balance, the amount of withdrawal and deduction, the number of withdrawal and deduction, and the abnormal situation of the ATM, which is enough to prove that Xu Ting only has a bank card 176.97 yuan, and on the ATM 17 1 withdrawal/75,000 yuan, but actually only debits 175 yuan. Defenders' defense opinions on unclear facts and insufficient evidence in this case cannot be established.

2. Defender suggested that defendant Xu Ting's behavior did not constitute theft, but unjust enrichment in civil law, and he should be acquitted, and Xu Ting suggested that his withdrawal was to protect bank property. After investigation, it was found that the ATM machine was abnormal during normal withdrawal, and he could withdraw money beyond the balance and could not deduct it truthfully. After that, he cashed out at three time points 170, which lasted for three hours. He didn't abscond with the money until his account balance was only 1.97 yuan. The way, times and duration of his withdrawal, as well as Xu Ting's statement in court that he knew that "the bank should not know" and "the machine knows, but people don't know" all indicate that Xu Ting used the ATM system abnormally and thought that the bank staff would not find out in time, illegally obtained bank funds and made normal and legal withdrawals with depositors. Xu Ting's behavior conforms to the subjective and objective characteristics of larceny, which constitutes larceny. Xu Ting argued that he took the money to protect the bank's property and gave it to the unit leader, which was unfounded. Defender's defense opinion that Xu Ting's behavior does not constitute theft, but belongs to unjust enrichment in civil law, and Xu Ting should be acquitted cannot be established.

3. Regarding the defender's view that the defendant Xu Ting's behavior does not belong to the theft of financial institutions, our court believes that the ATM is a proprietary device for banks to provide self-service financial services to customers, and the funds stored in the ATM are the operating funds of financial institutions. According to the Supreme People's Court's verdict? Interpretation of some problems about the specific application of law in the trial of theft cases. Article 8 "Theft of financial institutions as stipulated in Article 264 of the Criminal Law refers to the theft of financial institutions' operating funds, marketable securities, depositors' deposits, bonds and other funds and enterprises' settlement funds, stocks and other customer funds, excluding the theft of financial institutions' office supplies, vehicles and other property". Xu Ting's behavior belongs to the theft of financial institutions. Defender's defense opinion that Xu Ting's behavior does not belong to the theft of financial institutions is unfounded in law and will not be adopted.

We believe that the defendant Xu Ting's act of stealing bank working capital by secret means for the purpose of illegal possession has constituted theft. At 2 1: 56 on the night of Xu Ting's murder, the first withdrawal of RMB 1000 was due to the abnormality of the ATM during normal withdrawal, which should not be regarded as theft. The remaining 170 withdrawals, with 174 yuan deducted from its bank account, should not be regarded as theft. The amount of theft in Xu Ting is * * *. The fact that the public prosecutor accused Xu Ting of committing a crime was clear, the evidence was true and sufficient, and he was convicted. The amount of theft from financial institutions in Xu Ting is huge. According to the law, the penalty of "life imprisonment or death penalty with confiscation of property" should have been applied. In view of the fact that Xu Ting committed a crime after discovering that the ATM of the bank was abnormal, he used a card to steal the operating funds of financial institutions, and his behavior was different from the crime of stealing financial institutions by premeditated or destructive means; Judging from the contingency of crime, the subjective malignancy of Xu Ting's crime is not great. According to the specific facts of the crime, the circumstances of the crime and the degree of harm to society, Xu Ting can be sentenced to a penalty below the statutory penalty. Follow? The Criminal Code of People's Republic of China (PRC)? Article 264, paragraph 2 of article 63, article 64 and the Supreme People's Court? Interpretation of some problems about the specific application of law in the trial of theft cases. The judgments stipulated in Articles 3 and 8 are as follows:

1. Defendant Xu Ting was convicted of theft, sentenced to five years' imprisonment and fined 20,000 yuan.

(The term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention will be converted into one day of fixed-term imprisonment, that is, from May 22 to 2012,212007. The fine shall be paid to the court within one month from the second day of the legal effect of this judgment).

Second, the defendant Xu Ting's criminal proceeds 173826 yuan shall be recovered and returned to the injured unit.

If you refuse to accept this judgment, you can appeal to the Guangdong Higher People's Court through our court or directly within ten days from the second day of receiving the judgment. If you appeal in writing, you should submit one original and two copies.

This judgment shall come into effect after being submitted to the Supreme People's Court for approval according to law.

Presiding judge Zheng

Judge Zhong Yuzhou

Acting Judge Nie Hejun

March 3, 20081day

This document is the same as the original check.

Staff Cao Zhihua

Liao yanjie

king