| At present,all major banks in the banking factory have launched their distinctive financial services and products in order to achieve the purposes of stimulating the market consumption ability,pursuing the use degree of bank credit card and other goals.This essay takes the Pudong Development Bank(hereinafter to be referred as Pufa Bank)as an example to analyze the "universal gold" service launched by its company.Since 2006,the Pufa Bank has carried out the "universal gold" service to their consumers,however,the unclear introduction of the service,the lack of perfected personnel vetting procedure and granting credit limit rapidly without restricting its designated consumption use occurred in this service led to a misunderstanding in the client base that this service is excluded the range of credit card services.Customers believe that the relationship between individuals and Banks is credit and debt,which means that even though they did not return the "universal gold" limit which beyond the credit card limit launched by the bank,they will be held responsible for their behavior by civil law instead of penal law which is regarded as the last defense line of the law.As a result,they use this kind of credit limit recklessly and maliciously and finally can not achieve the agreement of installment repayment.At this time,the issuing bank of the "universal gold" has to change its previous attitude of holding users' civil responsibility to using measures of criminal judicial protection to protect their rights.The unclear and unilateral introduction of the "universal gold" service by financial institutions lead to difficulty in defining the natures of it in the process of judicial practice.Up to now,there is no explanation related to the law on the nature of the "universal gold" service and the consequence of overdrawing the limit made by users,even no uniform judicial determination and standard of application.Therefore,it is necessary to conduct an in-depth analysis around the "universal gold" service taking the complicated case mentioned in this essay as an example.This paper contains above 31,000 words.The main body consists of four parts except for the introduction and conclusion parts:The first part is the description of basic details of the case.Firstly,it introduced the basic details of the credit card fraud case done by Li Mouzhen: the actor Li possessed the qualification of applying for the "universal gold" service after having a credit card launched by the Pufa Bank.However,he not only changed his address without notifying the bank after running out of both the credit card and "universal gold" limit but also refuse to return the money ignoring warning from the bank.He claimed that the money was used for production and management of his company but without objective evidence.Secondly,it illustrates the divergent views on this case(to analyze issues adapting the law in terms of the "universal gold"): the first opinion is that Li Mouzhen' s behavior does not constitute a crime."Universal gold",as the small-sum loan business using credit card as the carrier launched by Pufa bank,is subject to the "universal gold" cash installment repayment contract between the actor and the bank,which is in the scope of civil legal relationship adjustment.The second opinion is that Li Mouzhen' s behavior constitutes a crime.The "Universal gold" service as loan business,the personal address on the personal application materials issued by Li Mouzhen was changed by himself without informing the issuing bank after losing the ability of returning the loans duo to the deterioration of the production and operation conditions,which led the bank to suffer a serious damage of the safety of credit funds.The third opinion is that Li Mouzhen' s behavior constitutes the crime of loan fraud.Li Mouzhen argued that the "universal gold" loan was used for the company's production and operation,but there was no objective evidence could prove that,and Li Mouzhen did not inform the issuing bank after the change of address,with the purpose of illegal possession.The fourth opinion is that Li Mouzhen' s behavior constitutes the crime of credit card fraud."Universal gold" service is the cash installment repayment service for the credit card business.The "universal gold" service is an independent cash installment service excluded the fixed credit limit of credit card.Li Mouzhen refused to return the loan of "universal gold" and exceeded the limit time after receiving many warnings from bank.And he also changed personal address without notifying the card issuers with the purpose of illegal possession,which has conformed to the crime of malicious overdraft credit card fraud.Finally,it summarizes the focus of dispute: first,whether the "universal gold" service is the loan business or credit card business;Second,whether Li Mouzhen has the purpose of illegal possession;Third,whether the amount of "universal gold" refused to return by Li Mouzhen should be reckoned in the amount of fraud.The second part is the legal analysis of related problems.Firstly,it determines the relationship between the loan business and the credit card business in the field of civil law.And then through the demarcation of their business boundary in the financial field to make the "universal gold" be included in the category of credit card business.Second,it systematically analyzes the concept of credit card in different areas respectively since "credit card" in the financial sector has different standard in the field of criminal law,and also combines with the history of development of credit card,original designed,in order to conclude the reasonable scope of credit card and the conclusion that "credit cards" which are used in the crime of fraud are not included in the debit cards without overdrawing function;Thirdly,"universal gold" has extended the traditional single form of credit card to the new form under the situation of compositing the credit card and the debit card.After that,the essay demonstrates its rationality as the independent credit card in the conception of law by combining with comprehensive introduction of the business,application processing,repayment process and other relevant provisions.Finally,according to the relevant facts and evidence of Li Mouzhen' s failure to return the remaining amount on schedule after using the amount of "universal gold",the essay analyzes and draws a conclusion that he has the purpose of illegal possession subjectively.The third part is the analysis and conclusion of the case.First of all,"universal gold" should be regarded as a credit card in category of law;Secondly,the behavior of "universal gold" overdraft constitutes a crime of credit card fraud;Finally,the amount of overdraft of "universal gold" should be included in the amount of credit card fraud.The fourth part is research inspiration based on this case.To give full play to the status of criminal law in the legal guarantee of financial security;To make up the deficiency of legislative interpretation and judicial interpretation;To establish and perfect the new financial crime case guidance system;To strengthen the supervision of the third-party payment account model. |
PDF Full Text Request