Research On The Identification Of Malicious Overdraft Credit Card Fraud

Overdraft is the main function of credit card.It is difficult to determine whether the behavior of overdraft credit card constitutes the crime of malicious overdraft credit card fraud.The promulgation of judicial interpretation in 2018 has further clarified the cognizance standard of this crime,but there are still great disputes in the cognizance process of theory and judicial practice,mainly focuses on “Whether the cardholder has the intention of illegal possession ”,“ Whether the bank collection belongs to the effective collection category”,“The determination of the amount of crime”.In view of this,this article unifies the typical case,induces the dispute focus to comb the correlation theory theory to propose the solution.Expect to supplement and update the existing theory,malicious overdraft type of credit card fraud in judicial practice to provide reference and reference.As for the illegal possession of person,as the analysis of different views and practice,it is found that there are disputes about “The time when the purpose of illegal possession comes into being”,“The different time in the illegal possession”and “The influence of six ways of illegal possession ”.As for me it should be obvious of the purpose of illegal possession,the principle of the unity of the subjective and objective should be followed,the six applicable standards of the purpose of illegal possession stipulated in the judicial interpretation should be perfected,and it should be made clear that the debts can not be returned for objective reasons,it can not be concluded that the cardholder has the purpose of illegal possession,so it is necessary to pay attention to the examination of the card holder’s repayment ability and repayment attitude.For “ Effective collection ”,through the analysis of typical cases and relevant theories,it is found that “The starting point of grace period in multi-collection”,“The time interval in multi-collection”,“The way of collection in two collection”and “The effect of performance on collection effectiveness ” are controversial in the process of identification.The author believes that the Identification Standard of effective collection should be improved,and the grace period should be counted from the last collection in multi-collection,in the multi-collection,each collection must conform to the time interval,the bank must adopt different collection methods for the two collections,and the impact of the performance on the collection effectiveness should be made clear according to the actual situation.As for,“Crime amount”,adopt the views of typical cases and reality,there are many disputes in crime amount,such as crime amount in installment payment and calculation of crime amount in multi-card overdraft.The author thinks that the calculation method of crime amount should be clarified,the crime amount does not include the unexpired part of installment payment,and the crime amount should be calculated by means of limited explanation in the case of multi-card overdraft.