Studies On Criterion For Sentencing Of Crime Of Malicious Overdraft Credit Card

Study of type of malicious overdraft credit card fraud crime sentencing less, practical type of malicious overdraft credit card fraud crime sentencing exists many problems, is worth our study. Judicial reform, push forward the reform of the judicial sentencing standardization reform has little effect, however, until now, the problems such as nonstandard sentencing method is not scientific, sentencing particularly prominent, sentencing problem aggravate judicial injustice, leading to social public lose faith in law, damage the credibility and authority of justice. Combining with the practical problems, try to type against malicious overdraft credit card fraud crime approach to design a set of simple sentences, we wish to help to the judicial practice.In this paper, a total of two chapters, brief content is as follows:The first chapter analysis of malicious overdraft credit card fraud crime sentencing present situation and the way out. The first section discusses the malicious overdraft credit card fraud cases sentencing status quo, the main problem is the same district court sentencing difference is too big, caused by the characteristics of type of malicious overdraft of credit card crime of fraud of the sentencing sentencing opinions can’t apply on the implementation of the Supreme Court. The above questions the need to build a type of malicious overdraft of credit card crime of fraud of the sentencing system. Analysis in the second quarter to establish the necessity and feasibility of credit card crime of fraud of the sentencing system, type of malicious overdraft credit card fraud crime quantity and concentration, amount of the crime as common crime; Amount of credit card fraud is made, the amount of crime reaction social harmfulness, the sentence can be intuitive and easy to grasp, at the same time, the court sentencing guidelines also provides a blueprint for sentencing system. To build a system that requires a reasonable theoretical basis. Paper will establish a third type of malicious overdraft credit card crime of fraud of the sentencing system theoretical basis, start with discretion and quantitative combined meter square, the social effect and legal effect principle as the instruction, this is because considering should respect the discretion of the judge is not quantified accurately, malicious overdraft credit card fraud cases special attention to social effect, should be in the maximum extent to ensure the interests of the bank, at the same time give the reasonable sentencing consideration. System is most important in sentencing the starting point and the method for determining of punishment and crime sentencing starting point is the high frequency of corresponding punishment crime with one condition, through the trial data statistics can determine sentencing starting point. From mathematical sense, a set of data of average modal response, has certain representativeness, and by the high frequency crime as fact reference to improve judicial computational efficiency. According to the judicial interpretation, as long as the sentencing starting point to establish accurate, proclaimed punishment rule such as logical conclusion.The second chapter discusses the type of malicious overdraft credit card sentencing system design. Sentencing system in the design of key factor is the amount of crime in particular, so the first section studies the cognizance of the crime amount and sentencing. Firstly, the practice of installment payment business bank overdraft amount after the cognizance of the crime amount problem, according to "about the credit CARDS management" the explanation of the concrete application of law in criminal case strictly grasp the crime amount is determined. Secondly, this article strictly distinguish between crime and general violation. Card more malicious overdraft amount of crime and illegal funds exists in the coexistence of controversy, the author from the actual operation level already many times the amount of credit card crime should be accumulated, and adjust many illegal ACTS as a plot, is being considered in sentencing. When only contains multiple credit card crime, from the perspective of crawl make argument illegal amount should be paid to the cumulative credit card for many times, do the crime, attain the goal of penalty. Third, malicious overdraft of credit card crime and other types of credit card fraud, don’t give discount amount accumulative, such thinking is based on malicious overdraft credit card has essential difference with the other three kinds of behavior. Simple reasonable amount of accumulative total can’t sentencing, merge punishment can not only reflect damage degree of behavior do culpability, more can avoid when sentencing discretion.The second section discusses the type of malicious overdraft credit card fraud on punishment, the determination of baseline punishment. Type for malicious overdraft credit card fraud cases of penalty points are divided into two levels, according to 30000 yuan according to the regulation of malicious overdraft type large amount of standard is 10000 yuan to 100000 yuan, sentenced to five years, under the general grasp in each prison for a year, an increase of 20000 yuan increase base for 10000, 30000 yuan corresponds to prison for a year. According to the statistical data, the amount is much, 26000 yuan- 34000 yuan, the highest frequency of so take thirty thousand yuan of the corresponding type of malicious overdraft credit card fraud based with facts, fixed-term imprisonment 1 year starting point for the corresponding sentencing; The third and fourth quarter specific punishment is applicable analysis. Analysis of malicious overdraft credit card fraud surrendered, repay the principal and interest, probation, exempt from punishment and apply of "not guilty, light punishment", according to the Supreme Court guidance and practical cases was summarized.