A lawyer in Guangzhou has appealed to the National People's Congress for a judicial definition of the case involving a migrant worker sentenced to life imprisonment this week for withdrawing money he did not have from a malfunctioning ATM.
He Fujie, who works for the HJM International Law Office in the city, sent a letter yesterday to the National People's Congress, saying the case involving Xu Ting was not easy to define under the present law.
"The vagueness of the judicial definition lies primarily in whether or not an ATM is regarded as a banking institution," He said.
"Chinese law has no clear definition of it.
"If the National People's Congress can give a clear definition of what kind of crime a suspect is committing if he or she deliberately withdraws money from an ATM, which is not working properly, it will be good for judicial practice," he said.
In April 2006, Xu, a migrant worker from Shanxi Province, used an ATM belonging to the Guangzhou Commercial Bank. After withdrawing 1,000 yuan ($135) he noticed his account had been debited by just 1 yuan.
Rather than report the mistake, Xu made a further 174 withdrawals from the machine, amassing 175,000 yuan. His account recorded withdrawals of just 175 yuan.
The accounting error was soon noticed and after a month-long spending spree, Xu was arrested in Shaanxi in May.
This week, the Guangzhou Intermediary Court sentenced Xu to life imprisonment for the crime of larceny from a banking institution.
The decision sparked much debate among the public and the legal profession.
He Fujie said it was wrong to sentence Xu to life imprisonment when the law does not define ATMs as banking institutions. The case should have been treated as a civil matter rather than a crime, he said.
"ATMs are common in Guangzhou and other big cities. Xu didn't break into a well-guarded banking institution to commit a theft," He said.
"I don't think Xu's deliberate withdrawal of money from a malfunctioning ATM is the same as robbing a bank."
Zhong Wendong, director of the Guangzhou Lawyers Association, however, said the sentence was appropriate.
"Xu had a purpose in illegally misappropriating property belonging to someone else. An ATM is part of a bank, and Xu took money from it and spent it. All of these things add up to the crime of larceny," Zhang said.
In a recent online survey, just over 7 percent of the 19,437 people polled said they would report such a malfunctioning ATM to the bank.
Almost 50 percent said they would take advantage of the situation to make a little extra cash.
(China Daily December 28, 2007)