Judicial Determination Of Malicious Overdraft Credit Card Fraud

With the continuous development of social economy,commodity transactions become more and more frequent,and financial services become more and more perfect,credit finance arises at the historic moment.The emergence of credit card is an important symbol of the development of credit finance.Now the number of credit CARDS is increasing year by year,credit CARDS are used by more and more consumers.With the frequent use of credit CARDS,credit card financial crimes are also on the rise.The criminals take advantage of the omission of the system to carry out credit card crimes and financial fraud crimes by illegal means.In the financial fraud crime,credit card fraud takes up t he largest proportion,among which malicious overdraft credit card fraud is more common.In 1995,the Standing Committee of the National People’s Congress promulgated the "Decision on Punishing the Crime of Disrupting financial Order",which clearly stipul ates that malicious overdraft is one of the four modes of credit card fraud,thus endoring the malicious overdraft credit card fraud with legal evaluation.Subsequently,in 2009,the Supreme People’s Court and the Supreme People’s Procuratorate implemented the Interpretation of Several Issues concerning the Specific Application of Laws in Handling Criminal Cases of Obstruction of Credit Card Management,which refined the components of the crime of maliciously overdrawing credit card fraud.In order to adapt to the continuous development of the financial market,the decision of the supreme people’s court and the supreme people’s procuratorate on amending the > decision on the specific application of laws in handling criminal cases impairing the management of credit CARDS was implemented on December 1,2018,to amend the elements of the crime of maliciously overdraft credit card fraud.However,there are still some problems in the identification of malicious overdraft credit card fraud in judicial practice,which need to be solved urgently.As a starting point,based on the judicial judgment combing inductive characteristics of malicious overdraft credit card fraud cases,sorting out the problems,combining the theory of criminal law analysis of malicious overdraft of credit card crime of fraud of the constitutive requirements,adhering to the correct legal concept,tries to put forward the coping strategies,accurate and appropriate treatment of judicial practice of malicious overdraft credit card fraud cases.The text of this paper is divided into three parts:The first part of malicious overdraft credit card fraud constitute analysis.Firstly,the concept of malicious overdraft credit card fraud is analyzed in detail,including the concept of credit card,the discrimination of malicious overdraft and bona fide overdraft,the concept and conditions of malicious overdraft credit card fraud.Secondly,it discusses the crime constitution of malicious overdraft credit card fraud from the four elements and analyzes the constitution of the crime from the four elements.Again from the standard level of malicious overdraft credit card fraud crime of investigation and judgment,that is,the embodiment of the crime,punishment,mitigations of minor circumstances and frankly discussed.The second part of malicious overdraft credit card fraud status analysis.The legal norms of malicious overdraft credit card fraud are sorted out,including legislative provisions and judicial interpretation,etc.,and the legal provisions and modification context of malicious overdraft credit card fraud are summarized.By means of empirical analysis and case analysis,the main characteristics of malicious overdraft credit card fraud cases are summarized,including the gender,age,occupation,education background and other natural conditions of the subject of the crime,the characteristics of overdraft behavior,as well as the application of overdraft repayment and penalty;And to the malicious overdraft credit card fraud in the judicial determination of the existence of disputes,including the cardholder scope of dispute,the purpose of illegal possession of unknown,minor circumstances apply not in place,frankly mitigate the circumstances apply imbalanced four problems.The third part is the judicial countermeasures of malicious overdraft credit card fraud.In view of the problems in the judicial determination of malicious overdraft type credit card fraud crime,the current laws,regulations and judicial interpretation can not solve some special types of problems in judicial practice.Based on this,this paper puts forward countermeasures to guide the practice.Specifically,it includes: upholding the concept of modesty of criminal law and mitigation of penalty in judicial practice;identifying "cardholder" by distinguishing the use of credit card;reasonably inferring the purpose of illegal possession,including clarifying the existence stage and correctly using the presumption standard;dialectical application of "conditional crime and exempti on";full repayment of overdraft can reduce punishment;flexible application of injunction.