Research On The Crime Of Credit Card Malicious Overdraft

In recent years the number of malicious overdraft credit card crime is in sharp rising and the situation is becoming more and more serious. Under such condition, The Supreme People's court and the Supreme People's Procuratorate jointly promulgated several issues of interpretation about concrete application of law on impairing the management of credit cards in criminal cases. The interpretation made specific provisions about some problems encountered in practice, such as it gave the concept of malicious overdraft clearly; determined "for the purpose of illegal possession in six cases" and told how to calculate the amount of crime. Although the interpretation play a considerable guiding in practice, but didn't make further provision of other problem that encounters in practice. So it's necessary to do further research on some complex practical problems. Through the analysis of malicious overdraft credit card fraud crime combined with judicial practice, some difficult problems are detailed, in-depth discussed in this article. And on this basis, we put forward some own views and opinions, and hope to benefit to legislative and judicial practice.The text is divided into four parts.The first part describe malicious overdraft for the credit card fraud. The concept of malicious overdraft, the distinction of bona fide and malicious overdraft, and the common forms of malicious overdraft in practice are introduced in this part. Then two kinds of legislative models in foreign countries are introduced and legislation of malicious overdraft credit card fraud crime in our country is reviewed. The guiding significance of"interpretation" in judicial practice is affirmed and the shortcoming is pointed out.The second part introduces the composing item of malicious overdraft for the credit card fraud. Four parts about the body, objective aspect, corpus, subjective aspect are to be used to explain the detail of this crime. We think that malicious overdraft credit card fraud crime should be a complex object, which includes order of credit card management and ownership of public or private property. The main object is the credit card management order; secondary object is the ownership of public or private property."Refuse to pay back after the bank urging" should be used to identify necessary condition of malicious overdraft credit card fraud. As long as the collection of information is sent to the cardholder registration address, regardless of whether served the cardholder, it will be considered as the cardholder receives call information. Bank collection is a collection of meaning of criminal law. Although the judicial interpretation lists the reference standard on how to determine the subjective purpose of illegal possession, but in practice there still exist some controversy for the understanding and application of four criteria. The author suggests that should also set up"the situation which can eliminate the malicious overdraft".The third part discusses some trouble problems about the definition malicious overdraft. The condition of criminal form, together crime and criminal number is discussed in this part. The malicious overdraft credit card fraud crime is generally divided into two types, one is the typical malicious overdraft crime, and the other is atypical of malicious overdraft crime. Using some cases the problems of identification of accomplice, constitute a crime of credit card fraud of implicated offense, continuous offence and creep offense are analyzed. If the behavior have these two acts"with false identity to apply and use credit card"and" malicious overdraft"; and respectively form under the circumstances of the crime, the problem of how to identify the crime amount, accumulated or respectively calculated, is discussed.This last part is about how to make the lawmaking of the credit card deceive of malice overdraft type offense to be perfect. In this part, the author focuses on whether the unit should be composed of malicious overdraft credit card fraud crime. Unit should constitute the corpus of that offense. Finally, if the malicious overdraft credit card crime should be independent from the crime of credit card fraud is discussed. About this question, the author think it should be cautious, and the malicious overdraft credit card crime should not be an independent crime.