Study On Malicious Overdraft Crimes Of Fraud On Credit Card

Credit card, as a new type of pay order, played a weighty role in facilitating consumption and economic development. Since 1985, during which the first credit card was distributed by the first credit card company in ZhuHai, credit card business have expended tremendously in the recent twenty years. However, due to our defective credit card system, undeveloped facilities and loopholes of internal supervision, as the prevalent use of credit card, more and more malicious overdraft appeared, keeping trend of increasing every year. Therefore, credit card fraudulent offence with respect to malicious overdraft has become an essential topic in criminal law academic circle.To this end, the first part of the paper gives a summary of malicious overdraft. After introduced the categories of overdraft, this part will examine the theoretical definition of malicious overdraft and enumerate several specific conducts of malicious overdraft. Then there is an introduction of the relevant regulations in foreign countries, and a review of legislating progress as to malicious overdraft in China.The second part of paper discusses the specific components constituting the malicious overdraft defined above regarding the latest judicial interpretations. And after reconsidered some controversial components, the author raises his own argument. Firstly, there is a theoretical debate as to the object of the crime. Considered several views, the author admits that the object should be the order of credit card business and the ownership of relevant co operations. Secondly, pursuant to the principle of'crime and punishment stipulated by law', in establishing the crime of malicious overdraft, it is the indispensible condition that refusal of payment by cardholder after being requested should be proved. Relevant surrounding circumstances should be considered in determining this fact. Thirdly, the author affirms the view that cardholder should be the authorized.The third part of paper analyzed the judicial recognition of malicious overdraft. Several problems were discussed in this part including amount-calculating, criminal pattern and conspiracy following which author's views were set forth.The fourth part of paper discusses whether an independent accusation in relation to malicious overdraft should be constituted. After an analysis of rationales, I raised some reforming proposal.