Probe Into Credit Card Crime

Credit Card, a kind of credit documents between banks and individuals, is playing a role as Modern Currency in which form banks provide simpler, safer, and quicker services for customers. The Credit Card makes economic communications among people more concisely and efficiently, which sets up a reliable protection for transactions while guarantees a stable and rapid growth in economy. Although Credit Card contains much more high-tech than other traditional payment instruments, there are more and more crimes in various methods on Credit Card rising due to some technical and managerial defects of its own and countries all over the world are endeavoring to fight against such crimes by carrying out judiciary reforms and innovations.With the rapid development of economy, Credit Card, though with a relatively late beginning, develops quickly in China, while crimes on it grows rapidly at meantime, which lead to great losses to the country and society and undermine the financial order of China seriously. In 1997, the Criminal Law stipulated the crime of Credit Card Fraud in Article 196, which is one of the most important attempts to control and reduce the Crime of Credit Card Fraud in legislation of China. After that, the Amendment to the Criminal Law (V) was promulgated and came into force, further improving legislations on crimes of Credit Card. Comparing to other countries'legislation, the Criminal Law of the mainland, China has made a relatively all-around and advanced legislation on Credit Card crimes. However, whereas there are still many issues unrevealed, and more and more crime methods and forms on Credit Card crimes arising with development of economy and technology, we shall get down to study on crimes of Credit Card more deeply. In this piece of article, some basic issues, such as development history of Credit Card and crimes of Credit Card, essentials of commitment of Credit Card crimes, behavior ways, developing trend and legal practices thereof, etc., shall be studied integratively. On basis of analyzing the concept of Credit Card, the definition of Credit Card in Criminal Law, nature of Credit Card crimes, and subject and subjective essentials thereof, shall be interpreted and clarified hereinafter. The author hereby shall study on several main behavior ways of Credit Card crimes and some disputes relevant, explore the new trend of Credit Card crimes, demonstrate and analyze substantive and procedural issues in law application of such crimes and put forward with views of the author's, and reflect and prospect the legislation of Credit Card crimes in the end.Crime of Disrupting Administration of Credit Card and Crime of Credit Card Fraud shall be provided in different chapters, classified differently subject to different social relations undermined. However, from the normal course of Credit Card crimes, information-card-transfer-use, both of them shall belong to the chain of Credit Card crimes. Crimes of Credit Card have recently presented characteristics of collectivization, specialization, division and transnational, while legislation on such crimes embodies a course of protection of property interests-protection of system of credit instruments-protection of identity information of the card, which reveals a change in criminal law from regulation on results to regulation on the chain or the course of crimes. Such change is an adaption to requirements of safety in development of Credit Card, and also a scientific way to the study of economic criminal law, from the view of which, the author hereby puts forward with a systemic study on the chain of the Credit Card crimes.At the beginning of this article, the author reviews the origin and development of Credit Card, and introduces classifications and functions thereof. Through systemic analysis of domestic and international legislations on Credit Card crimes in history, historical development of Credit Card crimes shall be revealed. And we can draw enlightenment and experience from comparison between legislation of China and that of foreign countries on Credit Card crimes.Essentials of establishment of a crime provide a legal model to determine a crime. Therefore, essentials of establishment of a Credit Card crime offer us a legal model for determining the crime thereof. In this article, essentials of establishment of a Credit Card crime shall be interpreted in four aspects, criminal target, criminal object, criminal subject and subjective aspect of a crime. There are different definitions of Credit Card in the financial field and the criminal law field. Under circumstances of current laws, Credit Card covers debit cards, credit cards and quasi credit cards in criminal law. However, from the development of legislations on Credit Card crimes, it is necessary that the concept of Bank Card shall be applied in criminal law field and Bank Card crimes shall be restructured and determined subject to different characteristics of the crime. Essence of a crime is the nature of a crime, varying from different crime names. The primary object a Credit Card fraud crime violates is the credit administration system, while the secondary object is rights of public and private properties. The criminal object of a crime of disrupting Credit Card administration is also the credit administration system. When analyzing the issue of criminal subject, the unit's status as a legal subject shall be empathetically analyzed and interpreted hereinafter, which is that the unit shall be regarded as one of subjects of Credit Card crimes, and nature persons shall be varied from those persons in charge and other personnel who are directly responsible in a unit crime, when bearing responsibilities and liabilities, that nature persons in a unit crime shall be given a lesser punishment relatively. From the view of subjective essentials, a crime of disrupting Credit Card administration shall be different from a crime of Credit Card fraud that the former doesn't deem the Purpose of Illegal Possession as one of essentials of the crime, while, the latter, though without explicit stipulations of law, shall regard the Purpose of Illegal Possession as one of essentials, from views of systemic interpretation, and purpose interpretation etc. of the laws.After a summary description of constitution of a Credit Card crime, the next three chapters will emphasize on several behavior patterns of committing a Credit Card crime, among which, Chapter Third analyzes several disputes on crimes of Credit Card fraud; Chapter Fourth separates the Overdrawing with Evil Intention from behaviors of crimes of Credit Card fraud; and Chapter Fifth discusses behaviors, methods and litigation applications of disrupting Credit Card administration, combined with modification of the Amendment to the Criminal Law (V).When analyzing disputes on crimes of Credit Card fraud, the author starts from the legal relations of Credit Card, analyzes the relations and differences between consumption with POS machines and drawing money from ATM, and deems no natural differences between the two above. Working in accordance with programs set by people; both POS and ATM are designed to take palace of people partially or entirely to work. Both of them are the same in behavior pattern, tools of committing the crime, and social relations they disrupt, and differences in behavior target shall not be deemed as the key of distinguishing crimes. Therefore, such two behaviors shall be evaluated in the same criminal name. Uttering other people's Credit Card, no matter consumption on POS machines, or withdrawal or virement with ATM, shall be classified into crimes of Credit Card fraud. The behavior of fraud in Stealing a credit card and using it then is much more harmful than the behavior of stealing in that, for which the crime of stealing a credit card and using it then shall be deemed as a crime of Credit Card fraud. Xu Ting's case in 2008, is one of the most important cases of Credit Card crimes in recent years, which not only includes some basic issues on Credit Card crimes, such as electronic agency of ATM, banks'mistake, illegal possession and etc., but also involves various issues relevant to civil laws, criminal laws, legal foundation and social ethics, etc., such as judgment of unjust enrichments, behaviors of secret stealing, possibilities of expectation. The author hereby studies the foresaid case and hopes this case will play a positive role in legal development and improvement of legal consciousness of the public.On Overdrawing with Evil Intention, the author will reveal the concept of Overdrawing with Evil Intention by interpreting the special function of overdraft possessed by Credit Card, and then indicate the criminal nature thereof. The nature of the crime of Credit Card fraud of Overdrawing with Evil Intention type in China shall be disclosed by comparing legislation on it at home and abroad. The author shall discuss the constitution of the foresaid crime in details of its object, objective aspect, subject, and subjective aspect, in order to make certain the concept thereof. At the meantime, issues on distinguishing and recognizing crime and non-crime, the crime and another crime, criminal patterns, joint crimes and etc.. Finally, from the view of theory and practice, legislation and litigation, the author will review the article and draw the conclusion of setting the crime of abusing Credit Card in order to meet the current circumstances of Credit Card crimes of Overdrawing with Evil Intention type in present China.Disrupting the Credit Card Administration is a new financial crime stipulated in the Amendment to the Criminal Law (V) which used to be regarded as one act of preparations for a crime of Credit Card fraud, and is provided as an independent crime at present, realizing the change of legislation on pattern of such crime from consequential offense to behavioral offense. In accordance with some judicial interpretation, the crimes under the criminal name provided in Article 177 of the Criminal Law shall be divided into two different crimes. However, the author assumes that Disrupting the Credit Card Administration is a general description for various Credit Card crimes, no matter Paragraph 1, Paragraph 2, or even Forging credit cards stipulated in Article 177, are manifestations of Disrupting the Credit Card Administration, in which crime the subjective aspect shall be intentional, while behavior with negligence shall not be regarded as guilty. Essentials for the provisions of "Clearly Know" shall be subject to provisions of Care in laws. In objective aspect of such crimes, the author emphasizes on definitions about Possessing, Transportation, Large quantities and etc., and analyses on behaviors of Forging credit cards and Altering credit cards. In this Chapter, issues on crimes of Disrupting the Credit Card Administration, such as crime and non-crime, the crime and another crime, and judicial practices, shall be analyzed in comparison.With the rapid development of economy and technology of China, Credit Card crimes has presented trends of network, intelligentized and transnational. The author hereby puts forward with issues and resolutions thereto on methods and forms of crimes which have already given birth to damages to the society, and will be trends for the development of Credit Card crimes. In this article, the four issues, Credit Card crimes on network and criminal legislations thereof, issues on identity information crimes, drawing cash illegally with Credit Card and criminal legislations thereof, security about mobile payment, shall be mainly discussed and interpreted, in order to evoke new discussions and thoughts on researches of Credit Card crimes.The author used to serve in judicial departments for many years, and realizes that there is still a long way for advanced criminal theories to be well exercised in legal practices. Therefore, in the end of this article, disputes on subject issue and applications of procedural laws in legal practice of Credit Card crimes shall be analyzed and interpreted one by one, in order to find out circumscriptions of such crimes and ways out of the disputes, for good application is the ultimate purpose of laws and researches therein.