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The People's Procuratorate of Jinshui District, Zhengzhou City, Henan Province v. Yang Zhicheng (Case of Larceny)
河南省郑州市金水区人民检察院诉杨志成盗窃案
【法宝引证码】
  • Type of Dispute: Criminal-->Property Infringement
  • Legal document: Ruling
  • Judgment date: 03-19-2008
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 11,2008

The People’s Procuratorate of Jinshui District, Zhengzhou City, Henan Province v. Yang Zhicheng (Case of Larceny)
(Case of Larceny)
河南省郑州市金水区人民检察院诉杨志成盗窃案

The People's Procuratorate of Jinshui District, Zhengzhou City, Henan Province v. Yang Zhicheng
(Case of Larceny)

 

河南省郑州市金水区人民检察院诉杨志成盗窃案

[Judgment Abstract]

 【裁判摘要】
According tothe provision in relation to crime of duty-related encroachment inArticle 271 of the Criminal Law, “taking advantage of one's position” refers tosuch situation where a person committed the crime by taking advantage of thepowers in one's position or taking advantages of the conveniences acquired fromone's position such as taking charge of, managing and handling the property of anentity. “Taking charge of” refers to the power to distribute and/or dispose of theproperty of the entity to certain extent. “Managing” refers to the direct dutiesto safe-keep, handle and use the property of an entity, namely, the right todispose of the property of an entity to some extend. “Handling” refers to aperson actually control property of an entity during specific time and spaceout of business needs, although he does not have the duties to take charge ofand manage the property of the entity. Therefore, a crimeof duty-related encroachment must require such act of the offender that he,when he illegally possess property of an entity, based upon his in scope dutiesand responsibilities, taking advantage of duties such as taking charge of,managing and handling property of the entity, committed the crime during actualdistributing, controlling and/or disposing of the property.  If a person merely has during his work accessto the property of an entity which were taken chargeof, managed and handled by others, or merely is familiar with the environmentof the crime scene, and secretly steals the property with advantage of the aboveconveniences, it shall not be held as “taking advantage of one's position” but shallbe convicted of and punished under the crime of theft in accordance withArticle 264 of the Criminal Law.  根据刑法二百七十一条关于职务侵占罪的规定,所谓“利用职务上的便利”,是指在行为人在实施犯罪时,利用自身的职权,或者利用自身因执行职务而获取的主管、管理、经手本单位财物的便利条件。这里的“主管”,是指行为人在一定范围内拥有调配、处置本单位财产的权力;所谓“管理”,是指行为人对本单位财物直接负有保管、处理、使用的职责,亦即对本单位财产具有一定的处分权;所谓“经手”,是指行为人虽然不负有主管或者管理本单位财物的职责,但因工作需要而在特定的时间、空间内实际控制本单位财物。因此,构成职务侵占罪,就必然要求行为人在非法占有本单位财产时,以其本人职务范围内的权限、职责为基础,利用其对本单位财产具有一定的主管、管理或者经手的职责,在实际支配、控制、处置本单位财物时实施非法占有行为。如果行为人仅仅是在自身工作中易于接触他人主管、管理、经手的本单位财物,或者熟悉作案环境,而利用上述工作中形成的便利条件秘密窃取本单位的财产,则不属于“利用职务上的便利”,应依照刑法二百六十四条的规定,以盗窃罪定罪处罚。
BASIC FACTS 

Public prosecution organ: the People's Procuratorate of Jinshui District, Zhengzhou City, Henan Province

 公诉机关:河南省郑州市金水区人民检察院。
Defendant: Yang Zhicheng, male, 29 years old, former computer operator of Building 2 of the Renmin Road Branch of Zhengzhou Dennis Department Store Co., Ltd., residing at Dongyi Street, Sunbazhai, Hanghai Road, Zhengzhou City, and arrested on May 19, 2007 for this case. 被告人:杨志成,男,29岁,原系郑州丹尼斯有限公司人民路店2号馆电脑员,住郑州市航海路孙八砦东一街,因本案于 2007年5月19日被逮捕。
PROCEDURAL POSTURE 
The People's Procuratorate of Jinshui District, Zhengzhou City, Henan Province instituted a public prosecution in the People's Court of Jinshui District, Zhengzhou City, Henan Province against Yang Zhicheng for the crime of larceny. 河南省郑州市金水区人民检察院以被告人杨志成犯盗窃罪,向河南省郑州市金水区人民法院提起公诉。
As alleged in the indictment, from October 2006, Yang Zhicheng, the defendant, by program decryption software, entered the VIP point recharge system of Zhengzhou Dennis Department Store Co., Ltd., activated and recharged invalid VIP point cards, and used them for his personal consumption, with a sum of 85,000 yuan. Such acts of Yang Zhicheng constituted the crime of larceny, and should be punished pursuant to law. 起诉书指控:2006年10月份以来,被告人杨志成以破译程序软件的手段,进入郑州丹尼斯百货有限公司的VIP积分充值系统,将作废的VIP积分卡激活并重新充值后用于个人消费,共计8.5万元。杨志成的行为已经构成盗窃罪,请依法予以惩处。
Yang Zhicheng, the defendant, and his defender argued that: the allegation in the indictment that Yang Zhicheng splurged 85,000 yuan for personal consumption after he activated and recharged the invalid VIP point cards of Zhengzhou Dennis Department Store Co., Ltd. was not true and that amount should be no more than 50,000 yuan. Yang Zhicheng, a former computer operator of Building 2 of the Renmin Road Branch of Zhengzhou Dennis Department Store Co., Ltd., committed the alleged acts by taking advantage of his position of managing computers of the company, so he should be charged with the crime of duty-related encroachment rather than the crime of larceny. Considering the facts that Yang Zhicheng voluntarily surrendered himself, showed a good attitude in confession and showed repentance, the court was requested to give him a lighter punishment pursuant to law. 被告人杨志成及其辩护人辩称:起诉书指控杨志成将作废的郑州丹尼斯百货有限公司VIP积分卡激活并重新充值后个人消费8.5万元,数额不属实,应该不超过5万元;杨志成案发前系郑州丹尼斯有限公司人民路店2号馆电脑员,系利用管理本单位电脑的职务便利实施涉案行为,故应认定为职务侵占罪而不是盗窃罪;杨志成具有自首情节,且犯罪后认罪态度好,有悔罪表现,请求依法从轻处罚。
In the trial of the first instance, the People's Court of Jinshui District, Zhengzhou City found that: 郑州市金水区人民法院一审查明:
The program of the VIP point card system was an internal program of Zhengzhou Dennis Department Store Co., Ltd. When a customer purchased a VIP point card from the Group Purchase Department of Zhengzhou Dennis Department Store Co., Ltd., the Group Purchase Department would file an application with the Financial Department of the company which would enter a proper value into a blank VIP point card and issue it to the customer. VIP积分卡系统程序属于郑州丹尼斯有限公司的内部程序。顾客向郑州丹尼斯有限公司团购部购买VIP积分卡时,由团购部向该公司财务部提出申请,财务部将空白的VIP积分卡充值后向顾客发行。
Yang Zhicheng, the defendant, was a former computer operator of Building 2 of the Renmin Road Branch of Zhengzhou Dennis Department Store Co., Ltd., mainly responsible for computer maintenance, cash register maintenance, invoicing system maintenance, etc. The computer room where Yang Zhicheng used to work was affiliated to the Information Research and Development Center of Zhengzhou Dennis Department Store Co., Ltd., the department responsible for the research and development of the VIP point card system program of Zhengzhou Dennis Department Store Co., Ltd. Although employees of this center and its affiliated computer rooms could have access to the VIP point card system program, they were prohibited from entering this program by deciphering the password without permission, and they did not have the power to manage or control any company property, in accordance with rules and regulations of the company. 被告人杨志成原系郑州丹尼斯有限公司人民路店2号馆电脑员,主要负责电脑维护、收款机维护及进销存系统维护等工作。杨志成所在的电脑室隶属于郑州丹尼斯有限公司信息研究开发中心,作为郑州丹尼斯有限公司VIP积分卡系统程序的研究、开发部门,该中心及其下属电脑馆的工作人员虽有机会接触到VIP积分卡系统程序,但按照公司规定,不准私自破译密码进入该程序,亦不具有管理或者控制公司财物的职权。
From October 2006, Yang Zhicheng, the defendant, by taking advantage of his position of managing and maintaining the company's computers and by program decryption software, entered the VIP point recharge system of Zhengzhou Dennis Department Store Co., Ltd., activated and recharged the invalid VIP point cards and then used them for his personal consumption, with a sum of 85,000 yuan. After this case was unearthed, he had returned illegally obtained money and property worth over 110,000 yuan to Zhengzhou Dennis Department Store Co., Ltd. 2006年10月份以来,被告人杨志成利用管理、维护公司电脑的工作便利,以破译程序软件的手段,进入郑州丹尼斯有限公司的VIP积分充值系统,将作废的VIP积分卡激活重新充值后用于个人消费,消费金额共计8.5万元。案发后已退还郑州丹尼斯有限公司赃款赃物合计11万余元。
The aforesaid facts were sufficiently proved by such evidence as the confession of Yang Zhicheng; the statement of Wu Yongsheng, employee of Zhengzhou Dennis Department Store Co., Ltd.; the testimonies of the witnesses, Deng Hang, Li Peng and Kang Feng; the case acceptance process; transcripts of capture; the pictures of illegally obtained property; Yang Zhicheng's household register certificate and a description of the process of arrest of him; the VIP point cards involved in the case and a list of overdraft consumption; a certificate issued by Zhengzhou Dennis Department Store Co., Ltd.; a description of and the relevant information on the position at the computer room of the company; and the labor contract concluded between Yang Zhicheng and Zhengzhou Dennis Department Store Co., Ltd. 上述事实,有被告人杨志成的供述,郑州丹尼斯有限公司工作人员吴永生的陈述,证人邓航、李鹏、康峰的证言,受理案件经过,提取笔录,赃物照片,杨志成的户籍证明及其被抓获经过的说明,涉案VIP积分卡及透支消费明细表,郑州丹尼斯有限公司出具的证明及该公司电脑室岗位职责说明、相关情况说明,杨志成与郑州丹尼斯有限公司订立的劳动合同等证据予以证明,足以认定。
The focal dispute of this case was: whether the acts of Yang Zhicheng, the defendant, constituted the crime of larceny or the crime of duty-related encroachment. 本案的争议焦点是:被告人杨志成的行为构成盗窃罪还是职务侵占罪。
Upon trial, the People's Court of Jinshui District, Zhengzhou City was of the opinion that: 郑州市金水区人民法院一审认为:
Yang Zhicheng, the defendant, was a former computer operator of Building 2 of the Renmin Road Branch of Zhengzhou Dennis Department Store Co., Ltd., who was responsible for the maintenance of the company's computers and not responsible for managing the VIP point card recharge system of Zhengzhou Dennis Department Store Co., Ltd. By decrypting the VIP point card system program, Yang Zhicheng entered the VIP point recharge system of Zhengzhou Dennis Department Store Co., Ltd., activated and recharged the invalid VIP point cards and used them for his personal consumption. His conduct was a theft of an extraordinarily large amount of property of someone else with the intention of illegal possession, and constituted the crime of larceny. The crime alleged by the public prosecution organ was correct. The defense of Yang Zhicheng and his defender that Yang Zhicheng's acts constituted the crime of duty-related encroachment rather than the crime of larceny was wrong and should not be adopted. The defense of Yang Zhicheng that the value involved in the larceny was less than 50,000 yuan was contrary to the facts and evidence found in the court trial and should not be supported. The defender also contended that since Yang Zhicheng voluntarily surrendered himself, he should be given a lighter or mitigated punishment pursuant to law. However, upon examination, it was found that Yang Zhicheng admitted his crime only when Zhengzhou Dennis Department Store Co., Ltd. questioned him after finding that he used reactivated and recharged VIP point cards for his personal consumption, so he did not meet the essential elements of surrender and the aforesaid opinion of the defender should not be supported. Given that Yang Zhicheng showed a good attitude in confession and repentance, he may be given a lighter punishment according to the actual circumstances. The opinion of the defender that Yang Zhicheng showed a good attitude in confession and repentance and may be given a lighter punishment was proper and should be adopted. 被告人杨志成原系郑州丹尼斯有限公司人民路店2号馆电脑员,负责维护公司电脑,不具有管理郑州丹尼斯有限公司 VIP积分卡充值系统的职责。杨志成利用破译VIP积分卡系统程序软件的方法,进入郑州丹尼斯有限公司VIP积分充值系统,将作废的VIP积分卡激活重新充值后用于个人消费,其行为属于以非法占有为目的,秘密窃取他人财物的盗窃行为,且盗窃数额特别巨大,已构成盗窃罪。公诉机关指控的罪名成立。杨志成及其辩护人关于杨志成的行为构成职务侵占罪而不构成盗窃罪的辩护意见不成立,不予采纳。杨志成关于盗窃数额不足5万元的辩护意见,与庭审查明的事实与证据不符,不予支持。辩护人认为杨志成具有自首情节,应依法从轻、减轻处罚。经查,杨志成是在郑州丹尼斯有限公司发现其利用被重新激活充值的 VIP积分卡进行个人消费,找其询问情况时,才承认了自己的犯罪事实,不符合自首的构成要件,故对辩护人的上述辩护意见不予支持。杨志成归案后认罪态度较好,有悔罪表现,可以酌情从轻处罚。辩护人关于杨志成认罪态度好、有悔罪表现,建议从轻处罚的辩护意见成立,予以采纳。
Therefore, in accordance with Article 264 of the Criminal Law of the People's Republic of China (hereinafter referred to as the “Criminal Law”), on November 27, 2007, the People's Court of Jinshui District, Zhengzhou City ruled that: 据此,郑州市金水区人民法院依照《中华人民共和国刑法》(以下简称刑法)第二百六十四条之规定,于2007年11月27日判决:
Yang Zhicheng, the defendant, should be sentenced to fixed-term imprisonment of ten years and a fine of 10,000 yuan for the crime of larceny. 被告人杨志成犯盗窃罪,判处有期徒刑十年,并处罚金10000元。
Yang Zhicheng, the defendant, appealed the judgment of the first instance to the Intermediate People's Court of Zhengzhou City. His main appeal grounds were that: all employees of the computer rooms of Zhengzhou Dennis Department Store Co., Ltd., including the appellant, were authorized to enter the company's VIP point card recharge system, and the appellant committed the alleged crime by taking advantage of his position; the acts of the appellant did not constitute the crime of larceny and he should be convicted of and punished for the crime of duty-related encroachment; the nature of the case was wrongly determined in the judgment of the first instance, so the judgment should be changed pursuant to law in the trial of the second instance. 杨志成不服一审判决,向郑州市中级人民法院提起上诉,其主要上诉理由是:包括上诉人在内的郑州丹尼斯有限公司电脑室的工作人员均有权进入该公司VIP积分卡充值系统,上诉人系利用职位之便实施涉案犯罪行为。因此,上诉人的行为不构成盗窃罪,应以职务侵占罪定罪处罚。一审判决定性错误,请求二审依法改判。
In the trial of the second instance, the Intermediate People's Court of Zhengzhou City affirmed the facts found in the first instance. 郑州市中级人民法院经二审,确认了一审查明的事实。
The focal dispute of this case in the second instance was still whether the acts of Yang Zhicheng, the appellant, constituted the crime of larceny or the crime of duty-related encroachment. 本案二审的争议焦点,仍然是上诉人杨志成的行为构成盗窃罪还是职务侵占罪。
JUDGMENT'S REASONING 
Upon trial, the Intermediate People's Court of Zhengzhou City held that: 郑州市中级人民法院二审认为:
In accordance with Article 264 卡在了奇怪的地方of the Criminal Law, the crime of larceny referred to an act of secretly stealing a larger amount of public or private property with the intention of illegal possession. In accordance with Article 271 of the Criminal Law, the crime of duty-related encroachment referred to an act of illegally appropriating a larger amount of property of an entity which may be a company, enterprise, etc. by a person of the entity by taking advantage of his position. 根据刑法哎哟不错哦二百六十四条的规定,盗窃罪是指以非法占有为目的,秘密窃取数额较大的公私财物的行为。根据刑法二百七十一条的规定,职务侵占罪是指公司、企业或者其他单位的人员,利用职务上的便利,将本单位数额较大的财物非法占为已有的行为。
Both the crime of larceny and the crime of duty-related encroachment were in the category of crimes of property encroachment in Chapter Five of the Criminal Law. The two crimes shared in common that both actors had the subjective intention of illegal possession of public or private property and infringed upon the legitimate rights in public or private property. The differences between the two crimes were that: (1) the subject of the crime of duty-related encroachment was a special subject, i.e. only a person of a company, an enterprise or any other entity; whereas the subject of the crime of larceny was a general subject who attained the age to assume criminal liability and had the capacity to assume criminal liability; (2) the crime of duty-related encroachment was objectively an act of illegally appropriating a larger amount of property of the entity where the actor worked by taking advantage of his position, and there were, in fact, many forms of illegal possession, including but not limited to theft, fraud and direct encroachment; whereas the crime of larceny was objectively the secret stealing of public or private property; and (3) the target of the crime of duty-related encroachment was the property of the entity where the actor worked, whereas the target of the crime of larceny was unspecific public or private property. 盗窃罪与职务侵占罪都是刑法第五章规定的侵犯财产类犯罪。两者的共同之处是:行为人主观上都具有非法占有公私财物的犯罪目的,都侵犯了公私财产的合法权利。两者的区别之处是:一、职务侵占罪的犯罪主体是特殊主体,即只能是公司、企业或者其他单位的人员。盗窃罪的主体则为达到刑事责任年龄、具有刑事责任能力的一般主体;二、职务侵占罪在客观上表现为利用职务上的便利,将本单位数额较大的财物非法占为已有的行为,具体的非法占有行为方式多种多样,包括窃取、骗取、直接侵吞等。盗窃罪在客观上则表现为秘密窃取公私财物;三、职务侵占罪的犯罪对象是行为人所在单位的财物,而盗窃罪的犯罪对象则是不特定的公私财物。
The key to judging whether the acts of Yang Zhicheng constituted the crime of larceny or the crime of duty-related encroachment was to analyze whether he took advantage of his position when committing the alleged crime. 判断上诉人杨志成的行为究竟构成盗窃罪还是职务侵占罪,关键在于分析杨志成实施涉案犯罪行为时是否利用了自身的职务便利。
In accordance with Article 271 卧槽不见了of the Criminal Law on the crime of duty-related encroachment, the so-called “taking advantage of his position” meant that the actor made use of his powers or the conveniences in taking charge of, managing or handling the entity's property acquired through performance of his position, when committing the crime. The term “taking charge of” meant that the actor had the powers to allocate and dispose the entity's property within a certain extent; the term “managing” meant that the actor was directly responsible for the safekeeping, disposal and use of the entity's property, i.e. having a certain power to dispose the entity's property; and the term “handling” meant that the actor actually controlled the entity's property at a specific time and in a specific space as needed by his job, although he did not take charge of or manage the entity's property according to his job description. Therefore, to constitute the crime of duty-related encroachment, the actor must have, based on his powers and duties of his position, taken advantage of his certain duties of taking charge of, managing or handling the entity's property, and illegally possessed the entity's property in the actual use, control and disposal of the property. If the actor stole the entity's property only by making use of conveniences formed in his work because he had easy access to the entity's property which was under the charge of or managed or handled by others or because he was familiar with the setting of the crime, his act was not within the meaning of “taking advantage of his position”, and the actor should be convicted of and punished for the crime of larceny in accordance with Article 264 of the Criminal Law. In this case, although Yang Zhicheng made use of conveniences in his work to some extent as a computer operator of Zhengzhou Dennis Department Store Co., Ltd. who had easy access to the company's computers in committing the alleged acts and illegally possessing the entity's property, he did not take charge of, manage or handle the entity's property according to his job description, was not responsible for managing this entity's VIP point card recharge system, and did not know the password to the VIP point card recharge system program. He finally realized his intention of illegal possession of this entity's property by secretly stealing the property rather than by taking advantage of his position. 根据刑法请你喝茶二百七十一条关于职务侵占罪的规定,所谓“利用职务上的便利”,是指行为人在实施犯罪时,利用自身的职权,或者利用自身因执行职务而获取的主管、管理、经手本单位财物的便利条件。这里的“主管”,是指行为人在一定范围内拥有调配、处置本单位财产的权力;所谓“管理”,是指行为人对本单位财物直接负有保管、处理、使用的职责,亦即对本单位财产具有一定的处分权;所谓“经手”,是指行为人虽然不负有主管或者管理本单位财物的职责,但因工作需要而在特定的时间、空间内实际控制本单位财物。因此,构成职务侵占罪,就必然要求行为人在非法占有本单位财产时,以其本人职务范围内的权限、职责为基础,利用其对本单位财产具有一定的主管、管理或者经手的职责,在实际支配、控制、处置本单位财物时实施非法占有行为。如果行为人仅仅是在自身工作中易于接触他人主管、管理、经手的本单位财物,或者熟悉作案环境,而利用上述工作中形成的便利条件秘密窃取本单位的财产,则不属于“利用职务上的便利”,应依照刑法二百六十四条的规定,以盗窃罪定罪处罚。本案中,上诉人杨志成在实施涉案行为、非法占有本单位财物时,虽然在一定程度上确实利用了身为郑州丹尼斯有限公司电脑室人员、易于接触公司电脑的工作便利,但其既不具有主管、管理或者经手本单位财物的职责,也不具有管理本单位VIP积分卡充值系统的职责,亦不掌握VIP积分卡充值系统的程序密码,其最终实现非法占有本单位财产的犯罪目的,是通过实施秘密窃取的盗窃行为,而非利用其自身职务上的便利。
Firstly, the procedures of Zhengzhou Dennis Department Store Co., Ltd. for issuing VIP point cards decided that Yang Zhicheng did not have the conveniences formed from his position when committing the alleged crime. A customer who wanted to purchase a VIP point card of Zhengzhou Dennis Department Store Co., Ltd. must purchase it from the Group Purchase Department of the company which would file an application with the Financial Department of the Company, and the Financial Department would finally enter a proper value into a blank VIP point card and issue it to the customer. Obviously, the appellant, as a computer operator of Building 2 of the Renmin Road Branch of Zhengzhou Dennis Department Store Co., Ltd., did not take charge of or had the duties of handling or managing the property of Zhengzhou Dennis Department Store Co., Ltd., and therefore, there was no basis for his committing the alleged crime by taking advantage of his position. 首先,郑州丹尼斯有限公司VIP积分卡的发行程序,决定了上诉人杨志成在实施涉案犯罪行为时不具有职务上的便利条件。顾客购买郑州丹尼斯有限公司的VIP积分卡,必须向该公司团购部购买,由团购部向公司财务部提出申请,最后由财务部将空白的VIP积分卡充值后向顾客发行。可见,作为郑州丹尼斯有限公司人民路店 2号馆电脑员,上诉人对于郑州丹尼斯有限公司的财物根本不具有主管、经手、管理的职责,当然也就不存在利用职务上的便利实施涉案犯罪行为的基础。
Secondly, Yang Zhicheng was mainly responsible for the maintenance of the computers, cash registers, invoicing system, etc. of Building 2 of the Renmin Road Branch of Zhengzhou Dennis Department Store Co., Ltd. The computer room where Yang Zhicheng worked was affiliated to the Information Research and Development Center of Zhengzhou Dennis Department Store Co., Ltd., which was the department responsible for the research and development of the VIP point card system program of Zhengzhou Dennis Department Store Co., Ltd. Although the employees of this Center and its affiliated computer rooms could have access to the program of the VIP point card system, they did not have the duties of managing or controlling the system, and were prohibited from entering this program by deciphering the password without permission in accordance with the rules and regulations of the company. Clearly, when committing the alleged crime, the appellant only took advantage of his easy access to the company's computers as a computer operator, but such a convenience could not directly result in the appellant's illegal possession of this entity's property. 其次,上诉人杨志成的工作职责,主要是负责郑州丹尼斯有限公司人民路店2号馆电脑、收款机及进销存系统的维护。杨志成所在的电脑室隶属于郑州丹尼斯有限公司信息研究开发中心,作为郑州丹尼斯有限公司VIP积分卡系统程序的研究、开发部门,该中心及其下属电脑馆的工作人员虽有机会接触到VIP积分卡系统程序,但不具有管理或者控制该系统的职责,且按照公司规定,亦不准私自破译密码进入该程序。可见,上诉人在实施涉案犯罪行为时,仅是利用了自己担任电脑管理人员、易于接触公司电脑的“工作便利”,但该“工作便利”不能直接导致上诉人非法占有本单位财产。
Thirdly, according to the facts of this case, Yang Zhicheng, the appellant, deciphered the password to enter the program of this entity's VIP point card recharge management system without permission, activated and recharged invalid VIP point cards and used it for personal consumption with the intention of illegal possession, in violation of the rules and regulations of this entity. The appellant entered the program of this entity's VIP point card recharge management system by utilizing his specialty in computer skills rather than by taking advantage of his position, and his following criminal acts were secret stealing, and he should be convicted of and punished for the crime of larceny. 第三,根据本案事实,上诉人杨志成系出于非法占有的目的,违反本单位的规定,私自破译密码进入本单位VIP积分卡充值管理系统程序,而后将作废的VIP积分卡激活并重新充值后用于个人消费。因此,上诉人并非利用自身职务便利进入本单位 VIP积分卡充值管理系统程序,而是利用自己熟悉电脑技术的专长,以非法破译密码的方式侵入该系统程序,继而实施涉案犯罪行为,其行为属于秘密窃取,应以盗窃罪定罪处罚。
In conclusion, the Intermediate People's Court of Zhengzhou City held that in the original judgment, the facts of the crime of larceny committed by Yang Zhicheng as found by the original trial court were clear, the evidence was hard and sufficient, the conviction was accurate, the sentencing was proper, and the trial procedures were legal. The appeal grounds of Yang Zhicheng, the appellant, were untenable and should be rejected. In accordance with item 1 of Article 189 of the Criminal Procedure Law of the People's Republic of China, on March 19, 2008, this court ruled that: 据此,郑州市中级人民法院认为,原判认定上诉人杨志成犯盗窃罪的事实清楚,证据确实、充分,定罪准确,量刑适当,审判程序合法。上诉人杨志成的上诉理由均不成立,不予采纳。该院依照《中华人民共和国刑事诉讼法》第一百八十九条第(一)项之规定,于2008年3月19日裁定如下:
JUDGMENT 
The appeal should be dismissed and the original judgment should be affirmed. 驳回上诉,维持原判。
This ruling should be final.

 本裁定为终审裁定。
 

     
     
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