On Regulation Of Criminal Law For Malicious Overdraft

With the rapid development of credit card business, its risks arise as crimes oncredit cards increasing with each passing day. Criminals maliciously defraud theoperating capital of banks with the overdraw function of credit card, seriouslydisturbing the management of credit card business, and further, posing a potentialthreat to the safety of national financial assets. The Criminal Law of The People'sRepublic of China (1997) criminalizes the malicious overdraft on a principle basis.However, the relevant articles are too abstract to deal with the obstacles in theprevention and detection of malicious overdraft as new types of crime emergingone after another. As a result, how to precisely understand the features of maliciousoverdraft and how to combat this crime to protect the safety of credit card industryhas become a key topic of theoretical study on criminal laws.Based on the analysis of multiple legal nature of malicious overdraft, this paperstudies the regulation of criminal law for this crime, unscrambles its essentialcondition with full consideration of the austerity of criminal law, and also providessome solutions for the obstacles in the judicial practice. Besides the instruction, thispaper divides into 3 sections. Section 1, the analysis of multiple legal nature of malicious overdraft. Thissection provides a deep analysis on the legal system which governs the maliciousoverdraft, including the relevant rules and regulations of administrative law, civil lawand criminal law for credit cards. The malicious overdraft, a criminal offence,actually possesses the nature of civil actions as breach of contracts and tort. As aresult, the criminal law takes the two conditions,"the purpose of illegal possession"and"the failure of repayment after the bank issues the reminder", as a bound todivide criminal and civil liability.Section 2, the interpretation and relevant improvement of the constitutiverequirements of swindling activities as overdrawing through malice. Paragraph 2 ofthe article 196 of Criminal Law defines malicious overdraft in 4 aspects: First, thecard holder must be the"legal card holder"engaged in the contract with the bank.A person who steals and uses other's credit card shall be regarded as"legal cardholder"until his status is withdrawn. Second,"the purpose of illegal possession"isthe standard to discriminate overdraft with goodwill from malicious overdraft whichcan be identified by indirect evidence and also counterevidence. Third, no amountlimit or time limit is set in the Criminal Law, so the actual practice shall be taken intoconsideration. Forth, defects can be observed in the constitutive requirement of"the card holder fails to return the money after the bank issuing the card urges himto pay it"which may even connives the crime. The situation that the bank fails toissue the payment reminder shall be considered and further measured by the time.Section 3, the analysis on the judicial assertion of malicious overdraft. Whenthe amount limit of malicious overdraft increases, the overdraft interests shall notbe counted in, and at the same time, the overdraft repaid by the card holder shallbe dealt according to different intervals. As for the condition that the guarantorreceives the urges for payment, the assertion shall be made with full considerationon different guarantee liabilities. For the malicious overdraft committed byenterprises, it shall be criminalized as contract defraud.