"The court investigation is over, and now the court argument is open. Before the debate, the court draws the attention of the prosecution and the defense to the fact that the debate should mainly focus on the determination of the charge, sentencing and other controversial issues.

First, the appellant Zhou Jiangmeng spoke. The presiding judge said.

Zhou Jiangmeng's speech was similar to what he had said before, holding a letter in his hand and repeating his previous words. He wanted to say a few more words, but he was speechless for a while, and he didn't know what to say, and finally with the intervention of the judge, he ended his speech in a hesitant manner.

"Appellant Zhou Jiangmeng's defender spoke." The presiding judge said.

"Presiding Judge and Judge: The defender believes that in this case, after the appellant Zhou Jiangmeng picked up Li Yuanxing's passbook, he illegally withdrew other people's bank deposits by guessing the password for withdrawal.

The appellant's above-mentioned acts included the act of fraudulently using the name of another person to deceive the bank's trust, and the act of stealing the withdrawal password and withdrawing the bank deposit of another person without the knowledge of the other person. However, in the final analysis, the appellant's conduct was an act of fraudulent use and should be characterized as a crime of fraud for the following reasons:

1. Generally speaking, stealing other people's property and fabricating and concealing the truth to defraud others' property occur without the knowledge of the owner or custodian of the property, but the meaning of the two is different.

In the process of stealing other people's property, 'unknowing' means that the owner or custodian of the property is unaware of the objective act of the perpetrator (or the perpetrator subjectively believes that it has not been discovered), so it can be seen that there is no problem of the participation and cooperation of the owner or custodian of the property in the entire process of stealing.

However, in the process of fabricating and concealing facts to defraud property, 'ignorance' is manifested in the fact that the owner or custodian of the property does not know the truth based on a wrong understanding, which is ignorance of the nature of the act, and the owner or custodian of the property is directly involved in the entire process of fraud.

2. With regard to the acquisition and transfer of property, generally speaking, the theft of property is an act done unilaterally by the perpetrator without the awareness of the owner or custodian of the property. Fraud, on the other hand, is the act of consciously disposing of property by property owners and custodians who take fictitious facts as real facts when they fall into a misunderstanding.

3. As a property-based crime in this case, the infringement of property ownership is its essence, and the acquisition of property is the key to the characterization of this case.

In this case, the appellant cracked the password held by others by guessing the password of others, which can be regarded as an act of theft, but guessing the password correctly does not mean that he has obtained the deposit of others, but only a means to further obtain the deposit of others, and the password itself has no value, so it has no independent legal significance.

As far as this case is concerned, before Zhou Jiangmeng obtained Li Yuanhui's bank deposits through the above-mentioned means, the deposits were completely under the control and control of the bank. Zhou Jiangmeng's successful withdrawal of other people's deposits was achieved through the bank's delivery through the bank's trust, and the bank has a clear understanding of the delivery of deposits.

The bank's trust is based on a wrong judgment, and this is the result of Zhou Jiangmeng's concealment of the truth and fraudulent use of other people's names, so that the bank does not know the truth and mistakenly believes that he has the legal qualifications to withdraw money, so this kind of behavior is a typical fraudulent behavior.

To sum up, the appellant Zhou Jiangmeng's act of illegally withdrawing other people's deposits by guessing the password is a fraudulent act, and his behavior should be convicted and punished as the crime of fraud.

In view of the fact that the appellant was a first-time offender and an occasional offender, and that all the stolen money was recovered after the incident, and that he had a good attitude in admitting guilt after being brought to trial, the defender recommended that he be sentenced to three years in prison. Complete. Fang Yi finished his defense opinions and looked at the presiding judge.

The first draft of the defense opinion was written by Yun Qiao, Fang Yi gave Yun Qiao an idea, and then tried to get her to write the defense opinion. After getting Yun Qiao's first draft, Fang Yi made many revisions, and the final defense opinion was already 108,000 miles away from Yun Qiao's first draft.

Although the first draft of the defense opinion was revised beyond recognition by Fang Yi, Yun Qiao was very excited, because the master asked her to start writing the defense opinion, and finally got in touch with the core part of the case. But she knew that she still had a lot to learn, and in Fang Yi's words, Yun Qiao's defense opinions were more like small essays, with too much nonsense.

"It is now up to the prosecutor to speak." The presiding judge said.

"Presiding Judge and Judge: The prosecutor believes that the appellant Zhou Jiang took up other people's passbooks and took them for himself, and his conduct was essentially an act of embezzlement.

Thereafter, the appellant used the guessed passbook password to maliciously withdraw more than 140,000 yuan on several occasions, illegally took possession of other people's property, and then burned the other person's passbook and refused to return it, and his conduct should constitute the crime of embezzlement.

We recommend that the defendant be sentenced to five years' imprisonment. The prosecutor's words made Fang Yi stunned.

Okay, at the first trial, both the procuratorate and the court found that Zhou Jiangmeng had committed the crime of theft. In the second instance, the defender argued that the crime of fraud should be constituted, while the municipal procuratorate held that the court of first instance had erred in characterizing the case and that the appellant should constitute the crime of embezzlement. Now that the case has been changed from the AB option to the ABC option, I don't know if the presiding judge will make another D to make the three missing one more perfect.

On the judgment seat, the presiding judge's brain thought quickly.

"The prosecutor may respond to the defender's arguments." The presiding judge said.

"Okay, Presiding Judge. In response to the defender's defense, we make the following observations:

In this case, after the appellant Zhou Jiang found Li Yuanhui's passbook that he had dropped under the bench, he should have returned the passbook to Li Yuanhui, but he failed to return it in time, thus forming a custody relationship between the two.

The appellant Zhou Jiangmeng took possession of Li Yuanxing's bank passbook and refused to return it, which violated Article 270 of the Criminal Law and should constitute the crime of embezzlement. Complete. The inspector responded.

"The defender can respond to the prosecutor's comments." After a moment, the presiding judge said.

"Based on the prosecutor's defense and response, the defense issued the following defense opinions:

The defender believes that the appellant Zhou Jiangmeng's act of picking up Li Yuanxing's lost bank passbook and subsequently withdrawing the deposit is not an act of embezzlement, and should not be convicted and punished for the crime of embezzlement, for the following reasons:

First, the precondition for an act of embezzlement is that the perpetrator illegally takes possession of the property of another person in his lawful possession, and the object of the crime should be the property owned by the other person that has been lawfully held by the perpetrator.

In this case, although the evidence on record could not rule out the appellant Zhou Jiangmeng's lawful possession of the bank passbook he had found, it could not be concluded that Zhou Jiangmeng had lawfully held the deposits under the passbook.

Because the victim Li Yuanheng had a withdrawal password on the passbook, the loss of the passbook did not mean that he had lost control of the money in the passbook, and Zhou Jiangmeng did not obtain the legal right to hold the money under the passbook when he found the passbook, so the money in the bank passbook was not the object of embezzlement, and there was no object of embezzlement in this case. Speaking of this, Fang Yi paused, for no other reason, his throat was too dry.

(End of chapter)