Judicial Restriction Of Malicious Overdraft Credit Card Fraud

In today’s highly prosperous economy,credit cards are favored by Chinese people in the consumption field due to their convenient overdraft function,which has changed consumers’ payment methods and consumption habits.While being favored,the crime of credit card fraud also maintains a strong trend,among which malicious overdrafts occupy a large proportion of the crime of credit card fraud due to the low cost of crime and the fact that the issuing bank has not fulfilled its reasonable prudence obligations in order to expand its business arbitrarily.The proportion of the card-issuing bank’s overdraft has been greatly violated.Therefore,it is necessary to find a way to limit the interpretation of the crime of malicious overdraft credit card fraud.First of all,the essence of malicious overdraft of credit cards determines the crime and non-crime,this crime and that crime,and the correct understanding of the nature of malicious overdraft of credit cards determines the interpretation of the second paragraph of Article 196 of the Criminal Law.The theory of breach of trust and the theory of civil breach of contract in criminal law theory and judicial practice do not see that the legal interest infringed by malicious overdraft is property.Therefore,the theory of breach of trust and civil breach of contract are not adopted.The legal interest infringed by malicious overdraft is property,and the essence of malicious overdraft should be fraud.Secondly,the identification of the subject of "cardholder" is not uniform.Current laws and regulations do not make a detailed and detailed definition of "cardholder".In judicial practice,there are actual cardholders,illegal cardholders and legal cardholders.Confused situation.Therefore,the scope of cardholders should be limited,and "cardholders" are legal cardholders.Only those who apply for a credit card from the issuing bank and pass the approval in accordance with the procedures and requirements stipulated by the law can become the subject of approval.subject of the crime.Thirdly,the system status of "not repaying after collection" is wrong.Some take "non-repayment of collection" as a presumption that the "cardholder" has the intention of illegal possession;some regard it as an objective penalty condition;and still others regard it as a constituent element.The wrong positioning of the system has a serious impact on the determination of crime and non-crime.This paper believes that "non-return after collection" is an omission,which belongs to the constituent elements of the crime,and "the purpose of illegal possession" and "non-return after collection" constitute a crime.Two juxtaposed and indispensable conditions.Finally,judicial practice often ignores that the purpose of illegal possession is the constituent element of the crime of malicious overdraft credit card fraud.As long as the perpetrator commits the objective behavior stipulated in Paragraph 2 of Article 196 of the Criminal Law,it will be deemed a crime,and the perpetrator will be illegally possessed of overdraft funds.The subjective intentions of the Therefore,the principle of statutory crime and punishment should be followed,the "purpose of illegal possession" of the perpetrator should be independently proved,and the time node and corresponding principles should be specified in the identification time and identification method,and the problems in judicial practice should be solved within a time limit.