Legal Research On The Recognition Of Malicious Overdraft Of Credit Card Fraud

Since 90 s,credit card has been widely used in people's life,and the subsequent use of credit card fraud behavior has emerged.The earliest,our country does not have the related crime of financial fraud crime,this kind of crime is only as ordinary fraud crime.Until 1995,China promulgated the decision on punishing the crime of disrupting financial order,for the first time clearly stipulates the crime of credit card fraud.After the amendment of the criminal law in 1997,the crime of credit card fraud was formally incorporated into the criminal law.In the 196 th part of the criminal law,there are four kinds of credit card fraud.Among them,the most difficult to understand and identify malicious overdraft behavior.In 2009,the Supreme People's court and the Supreme People's Procuratorate issued "on the handling of the hindrance credit card management issues specific application of the law criminal explanation",in the interpretation of the meaning of filing standards and malicious overdraft behavior made further explanation.However,after the introduction of the interpretation,there are still many problems in the judicial practice and the academic circles for the determination of malicious overdraft credit card fraud.It is of great significance to study and solve these problems,which can be used to identify and combat credit card fraud in judicial practice.In this paper,through the typical case and academic materials related to malicious overdraft credit card fraud,summed up the various problems in the malicious overdraft credit card fraud crime,and through the theory and practice of combining with the analysis method,studies the problems and proposes solutions.In the first part of this paper,we discuss the three common problems of the crime of malicious overdraft credit card fraud.First of all,on the crime of credit card fraud "cardholders" understanding,through the analysis and comparison of two kinds of academic point of view,that the "card" should be understood as the true meaning of the cardholder credit card,including the claimant and the actual use of people.Next,through the analysis of the two actual cases,the author further discusses the legal liability of the actual user and the credit card applicant when the actual use of the malicious overdraft subject.Finally,the author discusses whether the credit card fraud is the main body of the cardholder.Although China's current law has not stipulated the crime of malicious overdraft credit card fraud crime,but according to the actual situation and the need to combat crime,it is recommended that the future in the legislative amendments to join the unit crime.The second part of this paper discusses the problem of the subjective aspect of the crime of malicious overdraft credit card fraud.First,the "malicious" to explore the time,through the analysis of the law and the theory of crime,you can determine the malicious overdraft malicious should be generated before the implementation of overdraft behavior or when.The two is on several provisions of the judicial interpretation in cognizance of "illegal possession" behavior understanding and application in judicial practice are discussed,through the analysis of several actual cases,the judicial interpretation of the provisions made further explanation.In the third part of this article,the author discusses the problem of the determination of the objective aspect of the crime of malicious overdraft of credit card fraud.The first is an overview of the theory of "malicious overdraft" were reviewed,and then through the analysis of cases identified on the judicial interpretation of the provisions of "malicious overdraft" the amount of crime is discussed,the malicious overdraft crime amount is limited to this view overdraft principal.Finally,a detailed exposition and analysis of several problems that the author of the key elements of understanding and validity of "malicious overdraft behavior in the collection of" the clear understanding of the collection should be effective collection and practice should be considered effective collection point.The fourth part of this paper discusses the crime of malicious overdraft credit card fraud.Through the comparative analysis of the standard identification of several existing academic accomplishment,theoretical analysis of the legislative intent and combined with the crime of malicious overdraft credit card fraud crime,that the standard of accomplishment should adopt "delivery and property loss said".At the same time,the author of the judicial practice in the existence of malicious overdraft credit card fraud attempted to explore the form,and put forward their own views.