The Research On Judicial Application Of The Malicious Overdraft Of Credit Card Fraud Crimes

Malicious overdraft credit card fraud is a special type of credit card fraud as stipulated in the second paragraph of Article 196 of the Criminal Law of China.With the in-depth development of market economy,credit card business in our country is also entering a period of rapid development,and the cases of malicious overdraft credit card fraud also show frequent and high incidence.In view of this phenomenon,China has passed the provisions of the revised criminal law,the introduction of relevant judicial interpretation to combat the increasingly serious phenomenon of malicious overdraft.However,there are still many perplexities in the judicial application process of such cases,including many difficult problems in terms of the subject of the crime,subjectivity,and objective constituent elements.Based on the author's experience and thinking in handling this kind of crime in the practice of public prosecution,this paper focuses on the problem of subjective and objective elements in the judicial application of malicious overdraft credit card fraud.This paper puts forward such views as "the presumption of subjective intent also exists the exception to the purpose of excluding illegal possession","the amount of overdraft of multiple credit cards should be accumulated in principle",and "the unit can constitute the crime of credit card fraud" in order to benefit judicial practice.Finally,based on the fuzziness between the civil penalty and the credit card overdraft behavior,we reflect on the necessity of using the criminal law to adjust the malicious overdraft behavior in our country,and put forward the possibility of suppressing the malicious overdraft behavior at the source through the construction of a diversified system.