存款名义人挂失领取他人钱款的行为解析

存款名义人通过身份证挂失提取他人借用本人身份证存放于本人名义下的卡内钱款的行为在学理上有侵占罪和盗窃罪两种对立的观点。行为准确定性的症结在于对存款占有以及占有支配力归属的不同理解。应当肯定的是，存款占有作为事实上的支配状态，银行享有对存款现金的事实支配，而实际持卡人和存款名义人同时享有对存款债权的事实支配，当二者发生重叠冲突时，存款名义人的支配效力大于实际持卡人，是存款债权占有的合法归属者。那么，存款名义人通过挂失提取存款的行为就属于将合法占有的他人存款债权变为非法所有，应当成立侵占罪。

Explanations on Behavior of Nominal Depositors Withdrawing Others＇Money by Report-loss

Theoretically,there are two opposed views on the behavior of a nominal depositor withdra- wing others＇deposit by reporting the loss of ID cards. One is crime of embezzlement; the other is crime of theft. The crux of the accurate qualitative behavior lies in the different understanding of the deposit posses- sion and of the dominant possession power. It should be affirmed that, as a factual dominant position, a bank enjoys the factual dominance of the cash on deposit,and that a nominal depositor enjoys the practical dominance of the claims on deposit at the same time. When the two overlap conflicting, the dominant power of the nominal depositor is greater than the actual cardholder so that the former is a legal ownership of the claims on deposit. Then, the behavior of withdrawing the deposits by report-loss by the nominal depositor belongs to transfer the legal possession of others＇claims on deposits to the illegal ownership. It should be sentenced to embezzlement.