Research On Judicial Application Of Malicious Overdraft Credit Card Fraud

With the continuous improvement of the national credit system,credit card,as a payment tool,plays an increasingly important role in the current economic life.Although Alipay,We Chat payment and other third-party payment tools based on the Internet have been widely used in people's daily life,credit card still served as the "main force" in payment tools,and its status has not been weakened at all.Judging from the cumulative card issuance,line of credit,total transaction amount,credit scale,per capita card holding amount and credit utilization rate,credit cards are showing a good development trend.Moreover,the central bank strengthens supervision and control over non-bank payment institutions,and the "physical cards" are gradually being replaced by mobile payment currently.Under such a background,credit cards play an increasingly important role in online and offline payment.As an important part of the construction of a credit society,fraud based on credit cards has naturally become the focus of social attention.Among them,the crime of malicious overdraft credit card fraud,as an important part of the crime of credit card fraud,directly endangers the foundation of the construction of credit system.Hence,it also becomes the focus of judicial adjudication.Based on this,it takes 1240 first-instance judgment documents of malicious overdraft credit card fraud in Fujian Province,Shanghai City and Guangdong Province,where the highest incidence of malicious overdraft credit card frauds take place,as empirical research samples.The malicious overdraft credit card fraud of judicial data is sorted out and analyzed,then the elements of the elements in the judicial process of application and application of the crux are analyzed,finally the expansion of the crime in the judicial application of the trend are discovered.In order to prevent and control the risk of criminal law in a risk society,the root of the expansion of judicial application of this crime is clarified in details.Specifically,on the one hand,the definition of the protection interests of the crime is still unclear,which leads to the deviation of judicial application of the elements of the constitutive requirements.On the other hand,in terms of conviction logic,it lacks of consideration of the fault of the issuing bank,which virtually aggravates the possibility of the defendant's conviction.Therefore,it is very necessary and important to study the protection interests of malicious overdraft credit card fraud and the fault consideration of the issuing bank,and to construct the judicial application path under the dual-track system of incrimination and incrimination on this basis.Specifically,from the perspective of the crux of the judicial expansion of malicious overdraft credit card fraud,the judicial judgment of malicious overdraft credit card fraud mainly involves two dimensions of the investigation,namely,norms and facts.The norms mainly focus on the judicial application of the elements of malicious overdraft credit card fraud,while the facts mainly refer to the generation of case facts of malicious overdraft credit card fraud.On the interpretation process of the elements of the crime of malicious overdraft credit card fraud,since there is a deviation in the understanding of its protection interests,the property protection theory and credit protection theory of single legal interest theory,the property protection and order violation theory,property protection theory and credit protection theory of double legal interest theory are all biased in guiding significance for the application of the constitutive requirements of malicious overdraft credit card fraud.Therefore,it is necessary to make clear the legislative spirit of malicious overdraft credit card fraud,and establish the interpretation basis status of double legal interest theory.Moreover,this theory can perfectly fit with the illegal type of malicious overdraft,showing strong explanatory power.However,the content of this double legal interest is quite different from the traditional theory.Considering that the crime of malicious overdraft credit card fraud is a special type of credit card fraud,the legal interest of credit interest and property legal interest should be established as the protection interest of this crime,which is also of more practical significance.The crime of malicious overdraft credit card fraud is analyzed by adopting both the doctrine of criminal law and the relevant theories of finance.It comes to the following conclusion: the main legal interest is the credit interest legal interest,and the secondary legal interest is the property of the issuing bank.The basic nature of this crime is an economic crime with the nature of fraud infringing on the credit interest generated by credit transactions,rather than a simple crime of infringing on property.When interpreting the case of malicious overdraft credit card fraud,the consideration of the fault of the issuing bank also needs to be taken into account.During the process of sorting out the facts of the case,it is found that the fault of the issuing bank can have an impact on the conviction of malicious overdraft credit card fraud.Therefore,it intends to study the influence of the victim's fault on conviction and sentencing as a breakthrough point,that is,to embed the theory of victim creed.Namely,the thinking of judging the scope of individual crime protection contained in victim creed is happened to be the missing part of the theoretical research on malicious overdraft credit card fraud.What's more,whether the victim,who has been controversial in the doctrine of victims,can protect himself through the same effective behavior as criminal law,has been effectively answered in the discussion that the card issuing bank,a special subject identity,has the duty of care and the ability to identify risks.Finally,it is concluded that the fault of the issuing bank can prevent the wrongdoing of the perpetrator and influence the conviction of malicious overdraft credit card fraud.The construction of malicious overdraft credit card fraud crime of judicial limitation applicable path actually refers to the construction of the path of incrimination and offense.After clarifying the problems of judicial application,it constructs a dual-track path of judicial application of malicious overdraft credit card fraud from the perspectives of limitation of conviction and broadening of conviction,aiming to fundamentally achieve the purpose of limiting the expansion trend of judicial application of malicious overdraft credit card fraud.First,it reinterprets the elements of the constitutive requirements on the premise of dual legal interests.Guided by the legal interest of credit interests,the core of "credit card" is limited to whether the application or approval of the electronic card or related business that exists and develops attached to the card requires the actor to provide collateral or collateral other than his own credit.When the property losses suffered by the issuing bank are also considered as the constitutive elements of "exceeding the prescribed time limit",a single overdue credit card only constitutes the overdue status of the credit card,which does not of course constitute a crime.However,from the point of view of the property and credit interests of the issuing bank,interest,late payment fees and other related expenses arising from the overdue behavior should be strictly excluded from the calculation of the amount of this crime.Second,in terms of the limited role of judicial application of collection under double legal interests,from the perspective of dual legal interests,the referee can only choose one of "not returning after two collections by the issuing bank" and "using the credit card beyond the prescribed time limit" to complete the identification of the property loss of the issuing bank,so he can deny the system status of collection as an essential element of the constituent elements.Besides,if it is to be used as a presumption element for the purpose of illegal possession,its establishment value will be weakened to the extent that it does not need judicial determination.Therefore,it is more appropriate to define collection as an objective punishment condition.Because it is not only in line with the protection purpose of criminal law,but also in line with the criminal policy of malicious overdraft credit card fraud,furthermore,it even coincides with the legislative intent of emphasizing the "effectiveness" of collection.Thirdly,the fault of the issuing bank can be regarded as the path of breaking the law to prevent the cause of crime.It can consider the fault of the issuing bank as an extension of the conditional incrimination mechanism,that is,when there is the fault of the issuing bank in the case and the personal danger of the perpetrator is not great,even if there are no other incrimination conditions in the case,it shall determine that the case meets the incrimination conditions of the crime and deal with the perpetrator.Specifically,it includes the following circumstances,such as the actor judges the crime by malicious overdraft due to the omission of examination and approval;the actor judges the crime of large malicious overdraft due to blind high credit;the high-risk actor continues to judge the crime of malicious overdraft due to slackness of risk management and control;and the high-risk actor judges the crime of malicious overdraft due to the negligence of credit status changes,etc.