The Research On The Self-involvement And Self Use In Criminal Law

Variety forms of swiping the credit cards from POS terminals to withdraw cash occur nowadays.In judicial practice,the court sentence someone withdrawing cash by swiping the credit cards from a POS terminal always on the base of Article 7 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate of Several Issues concerning the Specific Application of Law in the Handling of Cases of Crimes Disturbing the Administration of Credit Cards".Although this Judicial Interpretation does not explicitly exclude the "self-involvement and self-use" into the crime of illegal business,but for the special form of POS machine swiping and cashing,"self-involvement and self-use",the practice is categorized as unlawful business crime.The author believes that inappropriate.The reason why the application of law is inappropriate in practice is that the referee applies the law,and secondly,the Supreme People's Court has a somewhat contradictory attitude.Because on the one hand,the interpretation issued by the Supreme People's Court seems to rule out the crime of "self-involvement and self-use" into illegal business.On the other hand,in the case of criminal trials of the Supreme People's Court,it is considered that there is no difference between cashing out for oneself and cashing out for others.Although the "self-creating and self-use" and "POS machine swiping credit card sets" are both cashed by POS machines,the "self-creating and self-use" is due to the coincidence of the identity of the credit card holder who provided the cash service and the user who swiped the credit card.It is unique again.Therefore,whether the "self-involvement and self-use" can be regulated by the illegal business operation must follow the statutory principle of crimes,start with the elements of the illegal business crime,and analyze and demonstrate one by one according to the characteristics of "self-involvement and self-use".In the introductory part of the writer's introduction,I briefly describe the current status of research on the crime of suspected fraudulent business operations,as well as the author's writing intentions.The first part mainly proposes the concept of "self-involvement and self-use",and the academia's "self-involvement and self-use" criminal law research and judicial practice in its judicial practice.What are the problems?The second part mainly discusses the relationship between "self-involvement and self-use" and the crime of illegal business.Through the analysis of the essential elements of illegal business crime,combined with the characteristics of "self-involvement and self-use",from the "self-involvement and self-use" and in violation of the state The relationship between the regulations,and the "operational behavior" and the third and fourth items of the crime of illegal business,argues that "self-involvement and self-use"does not violate state regulations,and whether it belongs to "operating behavior" is regulated by criminal law.The specific analysis of the specific characteristics of the "business behavior"does not belong to "illegal funds payment and settlement business".Whether it belongs to"other serious disruption of market order behavior" also needs to be specifically judged from different social hazards.In the third part,through a typical case,the author combines the relationship between the aforementioned "self-involvement and self-use" and the crime of illegal business and the case to conduct analysis and demonstration.The fourth part summarizes "self-involvement and self-use." Re-emphasize the need to look at the relationship between "self-involvement and self-use" and the crime of illegal business on the basis of observing the legal basis for crimes.In the absence of administrative illegality,all "self-involvement and self-use." do not constitute the crime of illegal business.Even with the gradual improvement of legislation and the availability of relevant national regulations,whether "self-involvement and self-use" constitutes an offence of illegal business still requires serious consideration of whether it is "operating" and whether it has "serious social harm".Specific analysis of specific situations.