盗窃罪和侵占罪的关键的区别为是否移转占有。既然在“占有”问题上坚持事实占有说和法律占有说中的某种学说,就应该将逻辑贯彻到底,而不能虎头蛇尾、移花接木,上海市黄浦区法院的裁判无疑犯了这样的错误。在坚持法律占有说的前提下,仇某等人作为e时代银行卡的名义人显然已经占有了存款,只不过银行卡内存款的真正所有权归属于牟某,此种行为符合了侵占罪的犯罪构成要件,应当构成侵占罪。这种纯粹从对法律规定的解读、对法理逻辑的推理中得出的结论是属于学术性的,是价值中立的,也是刑事司法实践应当遵循的方法运用规则。 The key difference between theft and embezzlement is whether to transfer possession. Since we insist on certain theories of fact-possession and legal possession on the issue of “possession,” we should implement the logic in the end instead of acting out of control. The referee in the Huangpu District Court in Shanghai undoubtedly made such a mistake. Under the precondition of upholding the law, Qiu et al. Apparently already owned the deposit as the nominal person in the e-era bank card, except that the true ownership of the deposit in the bank card belonged to Mou Mou. Such behavior was in line with the crime of embezzlement Constituent elements should constitute embezzlement. The conclusion drawn from the interpretation of legal provisions and the reasoning of jurisprudence purely from the perspective of the law is of an academic nature and of a value-neutral one. It is also a rule of law that the criminal justice practice should follow.