"The Purpose Of Illegal Possession" Of The Credit Card Fraud Crime For Malicious Overdraft

The rapid development of modern economy makes traditional payment toolincreasingly unable to meet the real needs, increasingly unable to play its duemission. The credit card came into being under this background. Credit cardsappeared late in our country compared to other developed countries all around theworld. Though, the development speed is amazing followed by the credit cardcrime’s amount is getting more. Among these, the malicious overdraft occupied thevast majority of credit card fraud crime.With the credit card’s emergence and development in our country, our relevantlaws and regulations for the crime using credit card is also experiencing a scratchand gradually perfected process. During this process, the relevant laws andregulations for malicious overdraft crime become sound.To accurately identify malicious overdraft credit card fraud, we must firstclarify some concepts. So the first is the “credit card”. It differs in criminal law andin civil law. Next step is to clarify what is “overdraft”, what is “malicious overdraft”.After the relevant concepts clearly defined, we can carry out further analysis.The author maintains that to accurately identify the crime of malicious overdraftcredit card fraud, finding its subjective aspect is crucial, if the subjective elementdoes not have, you cannot identify the commitment of a crime. According to thecriminal law, which is not difficult to draw, to comply with the subjective element ofthis crime, you need to accurately identify “the purpose of illegal possession” whichhas been clearly defined in our judicial interpretation. However, in judicial practice,only identified subjective aspect is not enough. To accurately identify “not return tobank after two months with two collections” is also important.The “two collections” as a measure of identification can be used to identifysubjective element, but it still has to combine with subjective aspect. In the specificidentification process, we should insist on the principle of tolerance of criminal law,“law is common sense” as well as the perspective of criminal law care to make a correct identification for each such case as far as possible. It also asked the relevantauthorities dealing with the cases to take both the objective and subjective aspectsinto considerations. Only identified the crime after identified “two collections” is botreasonable. We should insist on the unity of subjective and objective, leavingreasonable behavior for exception. Neither too strict nor too ease.