Some Problems Class Malicious Overdraft Credit Card Fraud Crime

Credit card, as a means of payment in the modern society, is becoming widelyused in daily activities. But meanwhile, the number of crimes regarding creditcard increases proportionally, and the crimes are tend to be conducted in variousways. With the abuse of credit card, malicious overdraft as a kind of fraud was notincluded in the Criminal Law1979. Since nineteen eighties, when credit card wasintroduced into Mainland China, the judicial authorities make convictions of creditcard overdraft according to the regulations of fraud. It is until June30th,1995, thepromulgation of the Decision regarding the Punishment of Crimes engaged inDestruction of Financial Order，that credit card fraud was expressly stipulated. Laterthe Criminal Law1997also expressly stipulated malicious overdraft acts as a meansof credit card fraud and formally included it in the criminal justice system. TheExplanation on Lawsuits of Credit Card issued by the Supreme Court and SupremeProsecute in year2009, which gave more details on the main elements of overdraftfraud and also specified its patterns applied in practice, has further supplemented thecriminal law system in connection with malicious overdraft. Because of the diversityand complexity in malicious overdraft, it is always difficult for the judiciaryauthorities to make judgments according to the existing legislation and judicialpractice. Therefore, this paper focuses on five parts, which include both subjectiveand objective elements in credit card fraud, and studies on relevant legislations andjudicial explanation, together with a suggestion provided by the writer based onworking experience.The first chapter generally introduces and categorizes the domestic and foreignlegislation of malicious overdraft acts, and also summarizes its different legislationperiods and legislation modes. The writer believes that having a basic understandingof the development of relevant laws is fundamental to further explore the crime.The second chapter mainly discusses the subjective objectives of credit cardfraud. In malicious overdraft crimes, when judging whether the cardholder has illegal objectives, higher judging standards should be provided, which meansjudgments should be made by comprehensive elements. This chapter provides detailsfrom real cases, for example, the authenticity of cardholders’ information, theamount, the stability and the source of the cardholder’s income, the condition ofrepayment, the financial status of cardholder, and etc., and discusses their impacts onmaking judgments and prevents the occurrence of credit card fraud.The third chapter analyzes and identifies the amount of overdraft. For one thing,the amount of overdraft should only include the principle, without adding interestand other operation fees. Secondly, when engaged in criminal law, as a priority, therepayment should first offset the principle. Thirdly, the amount of overdraft shouldbe the current balance minus the total repayment after the last time the accountappears zero or positive. Finally, writer also provides calculation of the amount whenmultiple credit card frauds exist.The forth chapter identifies the time when the crime begins. According to anargument incurred in one case, writer forms the following perspective：the beginningof the crime should be the first time the account appears negative after repayment.Meanwhile, this chapter also emphasizes on the importance of time identification.The last chapter is about orientation and improvement of criminal legislations onmalicious overdraft. In writer’s opinion, due to the uniqueness of malicious overdraft,it can be convicted separately from other fraud.In a word, when fighting against malicious overdraft, we should punish crimesaccording to the law, and at the same time, try to alert and educate the public in orderto reduce social conflicts.