Analysis On Judicial Difficult Problems In Obstruction Of Credit Card Management

This paper is divided into seven parts.Part One firstly introduces the legislation history of obstruction of credit card management and then elaborates the definition and legislative value of the crime, which mainly lies in the realization of the conversion of the legislation on the credit card crime from consequential offense to behavioral offence, not only reducing the burden of proof by the public prosecution organ but also tightening the crackdown on the credit card crime, better protection on the legal interest and blocking the credit card crime and the realization of connection with international legislation and more effective curbing the trend of the credit card crime's flow into our country.Part Two analyzes the difficult and controversial issues of the target of the crime. The target of the crime shall be credit card; however the concept of credit card in the criminal law is not in line with the concept of credit card in the financial specialized term and daily life, and the author holds that the interpretation on credit card in the criminal law remains open. The target of the crime excludes the real credit card; however, selling and providing real credit card illegally are very common in the real life and the purchaser uses the cards into the illegal activities, and the author suggests incorporating the real credit card into the scope of the crime.Part Three analyzes the judicial confusion of the crime from the perspective of the behavior. Since the false identify certification excludes the false credit standing certification owing to the truth of identity card and the bank can find out the owner of through identity card, it is inappropriate to expand the interpretation on the identity certification. Counterfeiting is only restricted to counterfeiting by others, if the owner holds or transports the credit card after counterfeiting, which has conducted criminal judgment on the counterfeiting and the holding and transporting is the subsequent behavior of counterfeiting, which belongs to the afterwards act, exempt from impunity.Part Four analyzes the subjective fault, for example, the understanding and cognizance on “knowingly” cannot only based on not knowingly argued by the doer, but should presume whether the doer is knowingly according to the case. The crime does not necessarily require the doer to take money as the purpose, the reason for which is that there is no explicit provision in the criminal law; in addition the object offended in the crime is the bank card management order, which is different in the credit card fraud for the purpose of money and random addition of the purpose of money will greatly reduce the crackdown scope of the crime. The simple credit card collection does not constitute the crime, which not only the doer does not take money as the purpose but also the doer does not have fault in the subject aspect, nor does put the credit card into circulation in the object aspect, which will not impair the legal right.Part Five elaborates whether the unit subject is qualified. Although the criminal law does not stipulated the unit as the subject of the crime, impairing the credit card management by the unit in the real life is very common and furthermore the act done by the unit produces more serious social harmfulness; thus in order to not indulge the crime, it is advised to flexibly handle the unit act and to investigate the criminal responsibility of the person in direct charge in the unit.Part Six analyzes the correlation and concurrence between the crime and other crimes. There is internal close link between the crime and crime of credit card fraud, crime of forging financial bills, crime of theft, and crime of unlawfully obtaining credit card information by stealing, spying or buying and when recognizing constituting one crime of several crimes, it is required to make analysis form the perspective of implicated offender and imaginative joinder of offences.Part Seven makes criminal interpretations on “other serious circumstances”. Owing to the special time background, the circumstances have their rationality and necessity in the criminal law in our country. The circumstances can be divided into circumstances for ad judgment and circumstances for sentencing and the circumstance in the crime belongs to the upgrading of criminal penalty of the former. The judges shall make judgment on whether the circumstances in the crime falls within other serious circumstances from the perspective of the special identity of the subject, the serious consequences caused and the behavior and means. For example, where the doer simultaneously conducts more than one act of obstructing credit card management in the crime, should the doer have the act of obtaining the credit card by means of cheat and sell the credit card obtained by means of cheat, such crime can only be recognized as one crime since the doer breaks different charges in the crime; however from the subjective fault, the subjective fault of the doer is more serious than one act and produces more serious infringement on the legal interest, therefore the crime may apply to the circumstance.