The Identification Of "Collection" In The Crime Of Credit Card Fraud Of Malicious Overdraft

On November 28,2018,the supreme people’s court and the supreme people’s procuratorate jointly promulgated the "decision on amending the interpretation of > on specific application of law in handling criminal cases of obstructing the administration of credit CARDS"(hereinafter referred to as the "new interpretation"),which will take effect from December 1,2018.This paper will start from the "new interpretation" and other laws and regulations,focusing on the malicious overdraft credit card fraud on the "collection" identification of specific problems,so that the crime of collection behavior can be more clear and intuitive,in order to be able to clearly apply this crime in judicial practice,the judicial application of the benefits.This paper is divided into four parts:The first part mainly discusses the connotation and necessity of "collection" in the crime of malicious overdraft credit card fraud.Firstly,the author analyzes the connotation of collection through the original intention of legislation.The embodiment of "collection" in legislation is to minimize the impact while maintaining the financial order,so as to facilitate the judicial organs to identify the malicious overdraft from the procedure.Secondly,the necessity of collection is analyzed.The provisions of "collection" requirements can distinguish the punishment scope of the crime of malicious overdraft credit card fraud and require the issuing bank to undertake the obligation of careful examination of overdraft qualification.The second part is to analyze the establishment requirements of malicious overdraft collection.Firstly,this paper analyzes the legal conditions of malicious overdraft collection,which mainly include the subjective objective requirements,the legal conditions of exceeding the prescribed limit and the legal conditions of exceeding the time limit.As long as the foregoing requirements,can be identified as a malicious overdraft behavior.So the occurrence condition of collection requirements is very important,it is the statutory basis for collection,is the premise of collection,is to determine whether collection implementation is correct,malicious overdraft can be established an important yardstick.Then,it summarizes and analyzes the basic characteristics of the establishment requirements of malicious overdraft collection,so as to better understand the requirements of malicious overdraft collection.The third part is to deal with this kind of cases in practice when the collection of disputes combined with the case to sort out,mainly including collection of the main provisions of unclear,the identification of special collection methods,the cardholder and the actual overdraft of the different impact on collection,collection time node of different understanding and collection for the cardholder’s reality.The fourth part is mainly aimed at the collection of the dispute situation,put forward the judgment method and determination rules,in order to help the handling of such cases.It makes clear that the collection subject should be the issuing bank;Collection methods include collection by civil action;Recognize the diversity of collection methods,"by the issuing bank collection" does not require collection behavior to reach the cardholder.