Judicial Application Analysis Of The “Malicious Overdraft” Credit Card Fraud

Credit card is one of the credit products, which is issued by the banks or other issuers for profit-making purpose and focuses on the personal consumption. Overdraft is the basic function of the credit card. The way of “Reimbursement After Being Consumed First” has a popularity with people, which is becoming an important payment terms. However, every coin has two sides, the rapid expansion of the credit card industry has also brought more issues, such as too much blind consumption, high interest, the most serious problem is the “Malicious Overdraft”. From the perspective of the cardholder, if the overdraft is not serious, the cardholder may breach the civil laws and rules, taking civil responsibility; if the overdraft is serious, the cardholder may constitute the Credit Card Fraud, taking criminal responsibility,even entering into the prison. We must pay attention to the overdraft, this dissertation may mainly analyze the current judicial application and the application standard in the future, from the perspective of the criminal law.The 《Criminal Law》 of 1997 defined such crime in Article 196, “Malicious Overdraft” was defined as one of the Credit Card Fraud methods and defined the elements of the crime; In 2009,《Law Application Interpretation on handling the cases of Impairing the Credit Administration》made by the Supreme People’s Court and the Supreme People’s Prosecutor’s Office made more concrete elements of the crime in Article 6, aiming at fighting against the “Malicious Overdraft”. However, “Malicious Overdraft” existed fuzziness between civil and criminal laws and rules, in additional, there existed discrepancy in the application standards of the crime in practice, which made some credit card disputes belonging to the civil law be settled by the criminal law, having expanded the scope of the crime. The expansion not only breached the principle of Modesty, but also affected the justice credibility, this problem needed to be solved promptly.First, based on the judicial practice, I searched randomly 100 true criminal verdicts of “Malicious Overdraft” Credit Card Fraud on Non-Ligation cases network and the Chinese Judgments Online and collected the statistics. These verdicts can be traced back in 2014; the case sources are mainly from Henan、Anhui、Shanghai、Jiangsu、Gansu、Ningxia provinces, in additional, Hubei、Zhejiang、Guangdong、Guangxi、Sichuan、Xinjiang、Qinghai, 13 provinces in total. These verdicts were made by the Grass-roots courts, the contents of the verdicts were settled by the first trial procedure.Through these cases, I want to know how the “Malicious Overdraft” Credit Card disputes were solved in the judicial practice. Through the analysis of the statistics, I found that “Illegal Possession Intent” and “Notification”of such crime were defined randomly, there existed discrepancy regarding to the “Illegal Possession Intent” and strong justice presumption, the abuse of the fallback provisions. In judicial practice, the bank often took the “Notification” methods of message and call, very formally. And there was no fixed standard of the time interval between the two “Notifications”.Second, I read books, papers and other references to analyze the contents and defined situations of the “Illegal Possession Intent” 、 the standard of the “Notification” 、 the concrete notification ways 、 the start and interval of the “Notification” and so on. The contents of the “Illegal Possession Intent” shall contain the intent of excluding all the powers of property and the intent of possessing permanently. “Notification” shall be substantive.Third, combining the theory and practice, I found “Massively overdraft with no repayment ability and non-repayment” was defined as “Illegal Possession Intent”, the proportion of which is huge, however, there was no more evidence to prove the “non-repayment ability”; and also there were a lot of fund distribution ways afterwards defined as “Illegal Possession Intent”. This way breached the logic of “the psychological ideas rule the behaviors”. Concerning the “Notification”, the substantive standard of it did not implement strictly. These problems affected the application of the crime.Last, in order to make the best use of the criminal law, I will propose the application standard of the “Malicious Overdraft” Credit Card Fraud aimed at the problems.