Judicial Recognition Under The Coexistence Of Malicious Overdraft And Other Kinds Of Credit Card Fraud

From Dec.16th,2009, the Judicial Interpretation of Several Criminal Laws on Credit Cards which was announced by the Supreme People’s Court and the Supreme People’s Procuratorate had been formally brought into forces. According to this judicial interpretation, the starting point of criminalized amount for malicious overdraft became twice the amount of the other four kinds of credit card fraud. It formed a double-track pattern under the crime of credit card fraud. The original purpose of judicial interpretation was to distinguish malicious overdraft from other kinds of credit card fraud, because malicious overdraft had its own uniqueness which would deserve mitigation of punishment. On the one hand, this change was following the Principal of Suiting Punishment to Crime and the criminal policy of Temper Justice with Mercy. On the other hand, the two different standards under a same crime caused a series of problems for judicial practices. In addition, the real life situations are complicated and unpredictable. So it is likely that different judges would have different understanding of the laws, which might lead to judicial disorder and even inequities.This paper is aimed at solving the disorder in judicial recognition under the coexistence of malicious overdraft and the other four kinds of credit card fraud. This paper is divided into two main parts: The first part is to discuss a series of problems related to the number of crimes under the coexistence of malicious overdraft and the other four kinds of credit card fraud. In other words, single crime or plural crimes. Under the coexistence of malicious overdraft and the other four kinds of credit card fraud, whether the criminal is convicted of only one crime or he can be penalized for more than one crime First, the judgment standard of crime number is an important issue to talk about. For this issue, we should take the theory of Complete Elements that Constitute a Crime as the most suitable standard of crime number. According to this standard, if both the malicious overdraft part and the other credit card fraud part can gather the four constitutive elements of crime, there should be plural crimes of credit card fraud. Second, as to the punishment of same kinds of plural crimes, the combined punishment cannot be applied here. Instead, we need to adopt the uniting opinion. That is to view both the malicious overdraft part and the other credit card fraud part as one big crime, and give it a measurement of penalty as a whole.The second part is to discuss how to confirm the cumulative amount of crime when there are both malicious overdraft and the other kinds of credit card fraud. Theoretically, there are three kinds of standard in this theme-theory of independence, theory of combination, and theory of conversion. The advantage of the theory of independence is its faithfully compliance of the Principle of Legality. The disadvantage is that it lacks flexibility in judicial practices. This might let go of some crimes. Usually, it is not reasonable to add all the amount of crime together without any conversion. So the theory of combination is unadvisable. Compared to the other two, the theory of conversion seems to be a better one. But it also has some weakness. So it has not widely been put into popularization and application yet.