On The Criminal Amount Of The Credit Card Overdrawing Crime

On December 16,2009 the Supreme People’s court and the Supreme People’s Procuratorate promulgated the Interpretation on the specific application of several legal Issues concerning the hindrance credit card management in criminal cases. The interpretation changed the criminal amount of the malicious overdraft credit card fraud into 10000RMB, which is twice as other kinds of credit card fraud. The reason lies in that malicious overdraft as one kind of credit card is much lighter than others. On the other hand, the rule also makes confusion between the two kinds. At the same time, as the credit card business in China has been developing later than other countries, supporting laws and regulations are relatively backward, so there are more and more disputes in judicial practice. According to these disputes, the author analyzes the related dispute cases by extensively reading the related works and sorting, so as to get a logical result on the malicious overdraft amount.When the cardholder returns the debt, it goes first to the interest, because the behavior is in the scope of the civil legal restraints. While we talk about the malicious overdraft amount here is in the restraints of the criminal law, it is different from the above. As is known to all, the primary responsibility of criminal law is to punish the criminal. The compensation for the victims is mainly completed by the civil law. The compensation contains the direct loss as well as the indirect loss. "Interest income is the source of the bank’s profits. Ignoring it will obviously damage the bank’s legitimate income." This kind of view is got from the civil compensation. In addition, as the interest has been changing, the final amount of the crime also causes instability factors.There are cardholders who always return the minimum amount of their debt. This kind of behavior seems legitimate, but it causes serious danger of our country’s financial order. With this reason, the author holds the idea that this behavior should be thought as "other illegal behavior refusing to return the debt". Relating the minimum repayment amount, there are inconsistent between the collection amount and the actual debt amount. Thinking that the purpose of illegal possession of others’money is difficult to identify, the author suggests we should make the collection amount as the malicious amountWhen malicious overdraft and credit card fraud coexist, the coexistence can be divided into two kinds:the implementation and implement parallel, in the former one using cheating means to get the credit card is the premise and foundation of later overdraft, so the criminal amount should be calculated according to the ordinary kind of credit card fraud.Through summarizing the existing theories, there are independent theory、the merger theory as well as the allowance theory. These three kinds of theories have their own advantages and disadvantages. The author thinks the malicious overdraft credit card fraud amount should be calculated on a cumulative basis. When the accumulative calculation is done, we must consider the accumulative amount whether the legal punishment of the crime is changed, and whether the punishment is upgraded.