Research On Several Issues Of The Crime Of Defrauding By Credit Card

Credit card is a financial tool of modern economic life, which appeared in the eighties of twentieth century. Although just being established for a short time, it has developed fast in the market economy. Meanwhile, the criminal conducts concerning credit card are rampant, the crime defrauding by credit card is one of them. Due to the lagging administration of credit card, the imperfect of credit card's system, the interference of constitutions and so on, the rate of occurrence about defrauding credit card has been risen in recent years. In 1997, "the crime of defrauding by credit card"was added in the revised Criminal Law. As a newer crime, there are some difficult problems, which need deep discussion in the judicial practice and criminal law theory. The whole thesis is divided into three parts, they are the characteristics of the crime of defrauding by credit card, some problems concerning defining the crime of defrauding by credit card, the punishment application of the crime of defrauding by credit card. At first I studied on the subject of the crime of defrauding by credit card. The unit can being a cardholder and a user, and can defraud credit card. So the unit should be the subject of the crime of defrauding by credit card. Then more effort is put on the objective requirements of the crime of defrauding by credit card. The four behaviour patterns, including the act of using forged credit card, using voided credit card, using others'credit card, using credit card to overdraw maliciously, are discussed respectively. I pay more attention to the criminal act of malicious overdraft. The definition of malicious overdraft is given firstly. According the Criminal Law, it refers to the cardholder with the intent of illegal possession overdraws beyond the fixed number or date, and doesn't return it after the banks calling. The defined "Do not return upon calling"has its reasonable side, but it cannot cover the objective requirements of malicious overdraft, which will leave some space for lawbreakers. To those persons who gain credit card by defrauding or have obvious intent of illegal possession, the objective requirement cannot be confined by the "Do not return upon calling". Second, because of all kinds of behaviors of malicious overdraft, we must distinguish the criminal act of malicious overdraft from the ordinary civil dispute of overdraft. The second part of the thesis about some problems concerning defining the crime of defrauding by credit card, mainly deals with the act of stealing and using credit card. According to the Criminal Law Clause 196 Paragraph 3, the act of stealing and using credit card is regarded as the crime of theft. It is argued that how do we deal with the act of stealing and using credit card. I propose that such kind of act shall be convicted as the crime of defrauding by credit card, the act of stealing and using credit card suits for the crime of defrauding. The actor is criminal base on the act of using credit card. Those persons who have stolen credit card but not use them cannot be treated as criminals. Only after they use them, the acts of stealing credit card and using credit card combined together are called crime. The act of stealing just provides some possibilities of getting property, the act of using is the key point. Based on the special method of operation of credit card, the criminals must perform the act of defrauding by fictions and concealing truth. In fact, it is the act of using others'credit card. Therefore, the act of stealing and using credit card shall be convicted as the crime of defrauding by credit card. And how do we define malicious overdraft? The subject of the act of malicious overdraft includes this legal cardholder and that cardholder who gains credit card by defrauding. The subjective requirement of malicious overdraft is intentional, which is intention by illegal possession. "Overdraft beyond the fixed number or date"and "Do not return upon calling"are the objective requirements of malicious overdraft. Finally I propose to divide the criminal act of malicious overdraft from the crime of defrauding by credit card. Because it has some special meanings compared with the act of using forged credit card, using voided credit card and using others'credit card. The latter are typical defrauding conducts, but the former one is a kind of breach of faith. The main difference between them is that the person who overdraws maliciously must be the legal user; he must act with the intent of illegal possession; he must use the real credit card. Besides these, the social harm...