On The Malicious Overdraft Crimes Of Fraud On Credit Card

With the credit card business has been developed popularly, the credit card transaction clearing functions in our social and economic life plays an important role, at the same time, it is inevitable that the problems of risk of credit card, in which malicious overdraft credit card fraud has larger proportion, the number of cases increased year by year, also the amount of money involved, not only encroach on normal move of the consumer credit fund, but also disturbs the order of financial management, have destroyed the social good faith. In this context, how to apply the relevant legal provisions, effective against this great social harmfulness of crime of credit card, protecting the credit card industry, is the current academic and judicial department should focus on. In December 11, 2009, the Supreme People's court, the Supreme People's procurator ate ( hereinafter referred to as the" two high" ) issued the" on the handling of criminal cases impairing credit card management issues concerning the specific application of law interpretation" (hereinafter referred to as"" explain"" ) begin to carry out, on the basis of the amendment to the criminal law and relevant provisions, the malicious overdraft credit card fraud charges were made relatively detailed explanation, highlight the determination and strength to hit this criminal behavior. In judicial practice of the basic level, we should how to correctly understand the interpretation of the legislative intent, how to effectively apply the interpretation to malicious overdraft credit card fraud. This article starts from the subjective and objective elements of the malicious overdraft credit card fraud crime, combined with the related judicial interpretation, analyzed some problems of malicious overdraft credit card fraud case, then opinion on the solution about this problem, hope to benefit the judicial practice. The full text is divided into three parts.The first part, firstly introduced the credit card status and risk issues, followed by the survey data analysis in judicial practice of malicious overdraft credit card fraud situation, then introduced the malicious overdraft credit card fraud charges in domestic legislation, to interpret the two promulgated 2009 about impairing the management of credit cards" interpretation of criminal cases" provisions of the malicious overdraft credit card fraud section, for the further study of this crime.The second part, analysis some problems existed in the practice of the malicious overdraft credit card fraud. In this part, through the interpretation of "legitimate cardholder " notional understanding, elaborated should be part of" the actual cardholder" into the malicious overdraft credit card fraud" legitimate cardholder" category and investigation of criminal responsibility view; through the analysis of" for the purpose of illegal possession" elements, interpretation of malicious overdraft credit card fraud in the" illegal possession " generation time and condition, think in the judicial practice of judicial presumption can be widely applied to recognize the" for the purpose of illegal possession";" bank by defining two collections after more than three months do not return" category, describes the result of bank collection caused by different laws consequences, elaborated in the Bank of exhaustive collection mode under the conditions that the cardholder refuses to repay the fact established reasons. In this part, the author also discusses the judgment of acquittal caused to malicious overdraft credit card fraud in civil judgment the reflection of the problem.The third part, differentiate the punishment of malicious overdraft credit card fraud. The first detailed analysis of malicious overdraft credit card behavior causes, as the difference between the punishment of malicious overdraft credit card fraud in search of necessity, and then consider how to apply the criminal judicial policy of punishment of malicious overdraft credit card fraud, play a protective role of criminal law, to ensure the normal order of the financial administration, the other hand shows the restraining criminal law, narrowing to malicious overdraft credit card fraud crime striking surface.