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借打手机为名,趁机占为己有,其性质认定在司法实践中较为混乱。要想对此类案件进行合理定性,必须以行为人之间是熟人还是陌生人为判断基础,以行为手段是秘密逃跑还是公然逃跑为判断标准,进行综合评判。具体而言,陌生人之间的借打手机行为,被害人一般会保持警惕心理,根据社会一般观念,手机虽然在犯罪人手中,但事实上仍由被害人实际占有,通过此种欺骗不可能取得财物。此时若是秘密逃跑,构成盗窃,若是当着被害人的面公然逃跑,则构成抢夺。熟人之间的借打手机行为,尽管犯罪人也往往会编造理由,但此时被害人并不是基于陷入认识错误,而是基于熟人关系信赖心理而将手机借给犯罪人,因而不能认为是被骗。同时,由于可以随时找到犯罪人,故也不能认为是盗窃或者抢夺。此时,即使行为人在借打手机之前就有非法占有的念头,也只能认定为侵占。
In the name of playing mobile phones, take the opportunity to own, its nature identified in the judicial practice more chaotic. To reasonably qualify such cases, it is necessary to make a comprehensive assessment based on whether the actors are acquaintances or strangers on the basis of judgment, whether the means of conduct is a secret escape or a blatant escape. Specifically speaking, the behavior of strangers borrowing mobile phones generally remains vigilant. According to the general social concept, though the mobile phone is still in the hands of the perpetrator, it is in fact still the victim’s actual possession, and it is impossible to obtain the property through such deception . If this time to escape a secret, constitute a theft, if in the face of the victims of the blatant escape, constitutes a snatch. Although the perpetrators are often able to fabricate reasons for borrowing mobile phones from one acquaintance to another, the victim is not deceived on the basis of being caught in the wrong hand by mistake based on acquaintance with the acquaintance of the acquaintance . At the same time, since criminals can be found at any time, they can not be considered as theft or robbery. At this moment, even if the perpetrator has the idea of illegal possession before borrowing a cell phone, it can only be regarded as encroachment.