The Malicious Overdraft Of Criminal Law Study

Today, along with the vigorous development of the credit card industry, life appears more and more "malicious overdraft" illegal acts of the credit card. New types of credit card overdraft consumption such as "Cross-border type" of malicious overdraft, "Collusion type" of malicious overdraft, "Empty card type" of malicious overdraft, etc, affects the financial order significantly and has negative effects on our society. On accounts of the specialization internationalization and concealment in the "malicious overdraft", financial agencies fails to uncover it and fail to take measures to control it. Although since 2009, many relevant judicial explanations are published, many matters on the concept and sum and subjective purposes of "malicious overdraft" don't remain clear completely and cannot apply to the practice, therefore, it is necessary to study the related issues of "malicious overdraft".This paper is about 37000 words, with 3 parts except the introduction and conclusion part.Part 1 is the general description of the concept. Firstly, the author defines the concept of the credit card overdraft consumption in the world of academic circles; And point out the cognizance of "malicious overdraft" should comply with the principle of subjective and objective unity; Besides, the author generalizes the common behavior type of "malicious overdraft".Part 2 is the introduction of "malicious overdraft" legislation and judicial dilemma. First of all, analyzes the legislative problem of the "malicious overdraft", summarizes the academic focus of controversy. From the unit can constitute a "malicious overdraft", "malicious overdraft" objective "the over-quota or super overdraws" in elements of the existence of necessary, the provisions of the "malicious overdraft" illegal possession purpose is reasonable, "malicious overdraft" independent into sin without necessary these four aspects; Secondly, analyzes the judicious predicament of the "malicious overdraft". In this paper, on the basis of a summary on the controversial issues in the practice, from "the cardholder" cognizance, the cognizance of the purpose of illegal possession, "malicious overdraft" amount of determination, "returned by the collection is still not approved", "malicious overdraft" and other types of credit card fraud when identifying the five aspects of judicial predicament is analyzed.Part 3 is about the "malicious overdraft" legislative and judicial suggestions. First of all, the article puts forward it is necessary to conclude the unit crime into crime subject, and adds the cases of eliminating malicious overdraft, define "malicious overdraft" an independent crime; Secondly, the article suggests that judicial practice in the qualification cognizance of "malicious overdraft" should be on the basis of behavior person whether has the purpose of illegal possession, and whether can receive the amount for the bank., the judicial organs shall be properly interpret the provisions of the judicial interpretation and combine with the purpose of the overdraft to presumption of the purpose of illegal possession. In the "malicious overdraft'" does not need to calculate the interest amount. As for the time, the time should be the first time when actors pay off the money, for multiple card overdraft amount, it can only reach crime punishment point part of the total amount. The type of definition of "After two amount after three months period" cannot begin until the collection is completed. Besides, approved amount between the two should have a month of time interval, and it is allowed to interrupt because of other reasons. "Malicious overdraft" together with other types of credit card fraud belong to the same kind of crime.