Research On The Difficult Problem Of Judicial Cognizance Of The Crime Of Malicious Overdraft Credit Card Fraud

Malicious overdraft,the legitimate cardholder in the implementation of the purpose of illegal possession under the control limit(exceeding the prescribed time limit or limit)after the issuing bank overdraft,collection is still not return the overdraft credit card fraud,credit card fraud as one of its specific forms,nature is "to overdraw the name of fraud".This article from the malicious overdraft credit card fraud crime typical problems of judicial cognizance,aims to maximize the purpose of legislation,to achieve clear,unified,standardized interpretation and application of specific identification standards.The full text is divided into four parts.The first part discusses the identification of the cardholder.The malicious overdraft is the overdraft implemented by "real person" using "real card",and it is still not returned.In order to meet the requirements of the principal identity of the criminal cardholder,the actual card holder is in accordance with the reservation information of the card issuing bank.One card separation "type of malicious overdraft credit card lending form",when the actual card and cardholder with criminal accomplice requirements,according to the malicious overdraft credit card fraud accomplice.The second part discusses the existence stage and specific identification of the purpose of illegal possession.The principle of behavior and responsibility also determines that the purpose of the cardholder's subjective illegal possession must exist in the period of overdraft and collection.The criminal presumption is to solve the difficult path of effective recognition of the purpose of illegal possession,should be reflected in the application of criminal presumption the applicable principles,basic facts explain the principle of presumption and fact rebuttable principle.The third part discusses the identification of effective collection.Pay attention to the effectiveness of collection,collection in the selection of the form of the civil litigation,recognized as the effective collection;collection of information service object to the cardholder actual receiving principle,can effectively convey information to be served as a supplement;to standardize the issuing bank for collection frequency,will collection interval as the effective collection identification criterion.The fourth part discusses the calculation of the amount of malicious overdraft.The amount of the malicious overdraft is only limited to the overdrafts that have not been repaid or refused to be reimbursement,and this is the basis for the conviction;and the interest is not the amount of the overdraft,but only the basis of the sentencing.A variety of credit card fraud is carried out by the same behavior subject,and when there is a cross between malicious overdraft and ordinary credit card fraud,the "differential cumulative" standard should be applied to the amount of crime involved in each behavior.