The Statement Of The Reconstruction On Conditional Mechanism For Exoneration About Swindling Of The Malicious Overdrawing Type Credit Card

In recent years,China's penalties continue to develop in the direction of light.In order to adapt to this trend,criminal law or judicial interpretation make rules about decriminalization for some economic crimes.Swindling of the malicious overdrawing type credit card is one of them.According to the regulations,malicious overdraft is a kind of illegal behavior that the cardholder overdraw beyond the time limit and the prescribed limit for the purpose of illegal possession and still don't return after the two collection by issuing bank.Relative to other types of credit card fraud,malicious overdraft is the credit card fraud of "the right person and real card",which has the not too serious social harmfulness.Given this,our law sets a high starting point into sin for malicious overdraft,and set up the decriminalization conditions for this behavior through the way of judicial interpretation,which is the conditional mechanism for exoneration about swindling of the malicious overdrawing type credit card.The existence of this mechanism is of great significance,which is not only the embodiment of light punishment in China.More importantly,decriminalization for some defrauders can save the judicial resources.Besides,it can avoid that the offender was labeled as a crime,which is a guarantee of human rights.But the implementation of the significance should premise on the application of the conditional mechanism for exoneration.Otherwise,it is just an idle talk.We find that the applying effect of the decriminalization condition about malicious overdraft is not ideal through the empirical study of three hundred and thirty-seven judgments of henan province.No one was acquitted,which shows the difficulty of making a exoneration judgment about malicious overdraft.The existence of this phenomenon is not scientific,and it is caused by various reasons,including the reason of the mechanism of its own and external causes.The reason of the mechanism itself is the strictness about time conditions regulated by judicial interpretation;the external causes are the lack of concept for exoneration,the vague of the proviso about article 13 of criminal law and the influence of litigant mode of investigation centralism.Because of these factors,the court can not make verdicts of innocence based on the proviso.In addition,the existence of this unscientific phenomenon can't realize its great significance but instead causes some inestimable harm.The difficulty of making a exoneration judgment not only violates guaranty law status of criminal law,bu also detracts criminal efficiency.More importantly,it lead to the disorder of function of the criminal law and violate the human rights of the criminal act.Therefore,in order to eliminate these hazards,it is necessary to reconstruct the conditional mechanism for exoneration of malicious overdraft,including substantive and procedure law's reconstruction.In addition to change ideas of "valuing incrimination and despising decriminalization",we should make a clear regulation that the proviso can be used as the basis of a decision in the substantive law;we should perfect litigant mode of investigation centralism,and reconstruct the concrete decriminalization route about public security in the procedure law.Hence,we will adopt the method of empirical research to explain the reflection of the difficulty of making a exoneration judgment about malicious overdraft,and analyze its reasons and hazards.Finally,we will reconstruct the conditional mechanism for exoneration about malicious overdraft.By means of these measures,we hope that they can be helpful to exoneration about malicious overdraft and realize the unity of sense and legal.Besides,we also hope that they can promote the mature and perfect of malicious overdraft's legislation and judicial practice.