Study On Malicious Overdraft Of Fraud On Credit Card

With the malicious overdraft crimes increasing in our country, fraud on credit card problems has unfolded some new characteristics, which is more diverse, more complex and more specialized. This situation has brought great difficulties to the identification in judicial practice on relevant fields. In order to provide legal standards which are more definite, more detailed and more directly perceived through the senses for improving the identification of these kinds of crimes in judicial practice, The supreme people's court and The supreme people's procurator ate have released some anti-fraud judicial interpretations on credit card which have been formally implemented on December 16, 2009. The interpretations have further provides about the sentencing guidelines of related crimes. And the interpretations are also definite about the specific application of laws which handling the management obstruction criminal of the credit card, including the provisions related to malicious overdraft of fraud on credit card. But it has remaining debates on how to use the legal standards that exist, referring to the new judicial interpretations and learning to the judicial identification system of malicious overdraft of fraud on credit card is necessary. This article will analyze the performance of malicious overdraft of fraud on credit card, focusing on judicial practice, and explore some problem in judicial practice. On the basis of above discussions, author will put forward some view about these issues, hoping to do some benefits to the judicial practice.This paper is divided into three parts:The first part is an overview about the malicious overdraft credit card fraud. First, to start with the overdraft function of the credit card, analyze the concept that malicious overdraft of credit card, so as to make clear the theory distinction between normal overdraft and malicious overdraft. Second, introduces the 8 typical forms of the malicious overdraft credit card fraud often seen in judicial practice. Such as"every little makes type"malicious overdraft, "cheating credit card type " malicious overdraft, etc.The second part discusses the identification the constituents of the malicious overdraft credit card fraud. In the judicial practice of this problem, people more likely have dispute over the objective element that did not pay back after twice urging one to do so when three months dead line had run out. Over the identification of subject element the problem is to identify the credit card owner themselves. Over the subjective element the problem is how to identify one having the purpose to conduct unlawful taking, etc. so writer will focus on these parts of the problems discussing identification about them. The article argues that, collection of object should the cardholder and due and certain interval between two collection; the body must be lawful holder; "With the purpose of illegal possession" from various aspects that should be author.The third part discusses several difficulty identified parts of the malicious overdraft credit card fraud in the judicial practice. They are mainly about : How to Identify criminal amounts; How to Identify the agreement of overdraft credit card; How to Identify the joint offense of the malicious overdraft credit card fraud and How to understand and Identify the two kinds of leniently circumstances of which the judicial interpretations released by The supreme people's court and The supreme people's procuratorate. The article argues that, convicted, fine for delaying payment amount does not include compound interest, such bank fees charged fee; Agreement shall not be recognized as overdraft malicious overdraft; Common crime should be recognized in accordance with the nature of prime criminal charges; The two kinds of situations dealt with leniently strictly according to legal provisions shall be applicable.