Several Problems About Crime Of Credit Card Fraud

Credit card fraud refers to the behavior that one defrauds using credit card and gets a big profit. Credit card is a kind of credit certificate issued by banks or credit card companies to users (including units and individuals) for their purchasing commodities, getting services or drawing cashes. It has many functions such as transferring and accounting, consuming and loaning, depositing and drawing cashes, and automatic drawing, etc. Credit card fraud emerged and developed with the emergence and development of credit card. Because the credit card is used and spread widely in China, crimes about credit card fraud are increasing unceasingly. The 196th clause of our country's CRIMINAL LAW, 1997 prescribes Credit Card Fraud Crime. However, the lag in legislation leads to theory controversy and judicial confusion about it.This article fairly deeply analyzes and probes in three problems about the crime of credit card fraud: its subjective purpose, vicious overdraw, implicated crime. And then it concludes that: the Criminal Law does not expressly prescribe the crime of credit card defraud shall have the purpose of illegal occupation, however, according to the nature of the crime, " having the purpose of illegal occupation" shall be regarded as an indispensable requisite to constitute this crime.Vicious overdraw shall have three constitutive requisites: the subject shall be legal credit card holder; subjectively he shall have the purpose of illegal occupation; objectively the overdraw shall exceed the fixed norm and time limit and the amount shall be fairly big and not paid after bank's asking. At the time of cognizing vicious overdraw, we shall notice two questions. The first is that using the credit card that one gets by means of cheating to overdraw doesn't belong to vicious overdraw which can constitute credit card fraud. The second is that: if the holder overdraws viciously and rejects to pay, and his guarantor pays for him, the holder can be charged of vicious overdraw crime, too. Because the holder's behavior of overdrawing has constituted the vicious overdraw crime, the payment of guarantor can only influence the measurement of penalty. Guarantor's civil duty can not replace overdrawer's criminal liability. The behavior of forging and using the forged credit card to commit fraud crime is implicated crime, and shall be charged and penalized according to the principle of "giving heavier penalty". The behavior of stealing credit card and using it is not implicated crime. Stealing credit card can not constitute crime of stealing, because credit cards do not belong to the object of Larceny. So such a behavior only constitutes one crime, not several, which don't conform to the prerequisite of implicated offender. The legislation of charging and penalizing this behavior as Larceny is unreasonable, because it doesn't conform the theory of "finished state" of Larceny and the theory of heavily punished behavior absorbs slightly punished behavior, so it influences the cognizance to its accomplices condition. This regulation has logical mistake in itself, too.This article studies the three problems mentioned above and believes that there are shortcomings in present legislation, and it shall be perfected in three aspects. Firstly, it shall add units to the subject of credit card fraud. Secondly, in the aspect of objective behavior, it shall at first prescribe the behavior of using the credit card that one gets by means of cheating, because in view of crime constitution the behavior of using such a credit card to cheat property of banks and special merchants conforms to constitutive requisites of credit card fraud. But present legislation does not regulate such a behavior. And then, it shall add to prescribe the behavior of using credit card that is changed by the holder himself to commit the crime of credit card fraud. Using a changed credit card is different from using a forged card. Thirdly, it shall cancel the prescription of charging and penalizing the behavior o...