Research On The Judicial Application Of The Crime Of Malicious Overdraft Credit Card Fraud

Credit card plays an important role in facilitating people’s payment and daily consumption and has gradually become an indispensable part of people’s economic life.However,with the continuous expansion of the credit card market,the crime of credit card fraud presents a "gushing well" growth,among which malicious overdraft has become the main crime type of credit card fraud.Behind the sharp increase in the number of cases of malicious overdraft,the problem of judicial application has gradually become prominent,such as the identification standard of relevant elements is not uniform,crime and punishment imbalance.Based on this,this paper,based on the empirical research and through the disclosure of the judicial status quo,finds that there is an expansion phenomenon in the judicial application of this crime,and makes a reasonable limitation on it.This paper consists of three parts.The first part makes an empirical investigation of the judicial status quo of this crime,conducts a random sampling of the first-instance cases of malicious overdraft credit card fraud nationwide from 2018 to2021,selects 400 valid documents,and summarizes and analyzes the overall situation of the case and the specific circumstances of the case using various statistical methods.On the basis of the first part,the second part presents the dispute focus of the case with specific cases,reflecting the specific problems existing in the judicial application of this crime,including: the scope of "cardholder" is unclear,when the credit card is not used by the claimant himself,there are differences on whether the "cardholder" stipulated in Article 192 of the Criminal Law is the credit card claimant or the actual card user;The identification standards of "knowing that there is no repayment ability and a large amount of overdraft" are different.In some cases,cardholders who cannot repay due to objective reasons are identified as subjectively having "illegal possession purpose";The judgment standard of "effective collection" is fuzzy,which is reflected in the judgment of the effective recognition of collection on behalf of the third party,the judgment of the effective recognition of collection when the "person-card separation",and the judgment of the effective recognition of collection when the collection record of the bank is only used as evidence.There is confusion in identifying the nature of credit card special installment.There are differences on whether the essence of credit card special installment belongs to credit card overdraft or loan.The excessive discretion of punishment is reflected in the strict judicial application of lenient punishment rules and the single evaluation standard of probation application.From the first part and the second part of the judicial status of this crime revealed,found that the judicial application of this crime does exist expansion phenomenon,to a certain extent expanded the scope of the attack of this crime.Therefore,the third part analyzes and demonstrates the above five problems in judicial application theoretically,and puts forward a reasonable path of reduction,including: clarifying the scope of "cardholder",cardholder should be identified as the credit card applicant,and qualitative behavior of the applicant and actual card user based on whether the applicant is informed;The doer shall subjectively have "knowing" when overdrawing,and the identification of "repayment ability" shall take into account the expected income of the cardholder,which may refer to the bank credit card application evaluation method;Specifically identify the effectiveness of the bank entrusting the third-party institution to collect,distinguish the situation to identify the effectiveness of collection when "person-card separation",and pay attention to the substantial identification of collection evidence;Distinguish credit card overdraft and credit card special installment from the business model,clarify the relationship between them,avoid the bank in the name of malicious overdraft through criminal means to pursue loans;To accurately understand the rule of lenient punishment,the legislative intention of "can not prosecute" and "can be exempted from criminal punishment" in judicial interpretation is generally not to prosecute and exempt from punishment,which should be strictly followed,except in special circumstances.The application of suspended sentences should be expanded on the basis of a comprehensive assessment of the defendant’s repentance.