Judicial Analysis And Determination Of Malicious Overdraft Credit Card Fraud

With the rapid development of economy,credit card has become more and more dependent on the means of payment.People enjoy the convenience of credit card payment,but also suffer from credit card fraud.According to a statistics law "Expo" shows,from 2010 to 2015,the number of credit card fraud cases showed a rising trend,caused great impact on the financial order,which accounted for the largest proportion of types of malicious overdraft,reached 81.1%.Although the law about the malicious overdraft credit card fraud is more comprehensive and detailed,but in real life,the cardholder malicious overdraft means more diverse,the circumstances of the crime is more complex.In addition,the different understanding of the law leads to the existence of many controversial focuses in the identification of this crime.By studying the subject,subjective elements and objective elements of malicious overdraft credit card fraud,this paper hopes to provide some opinions on some ambiguous issues in judicial practice.This paper is divided into four chapters,the contents are as follows:The first chapter is a comprehensive description of malicious overdraft credit card fraud,mainly introduces the meaning of malicious overdraft,causes,characteristics and constitutive requirements of its crime.The author thinks that the causes of malicious overdraft are the two factors of cardholder and bank.If we wantto control the incidence of malicious overdraft credit card fraud,in addition to increasing the punishment of the crime itself,more efforts should be made to strengthen the supervision of the banking industry itself.In addition,through horizontal comparison of malicious overdraft credit card fraud cases,summed up this type of cases are mainly social harm small,high rate of settlement,low levels of behavioral culture and bank joint reporting of these four characteristics.The second chapter analyzes the judicial determination of the main body of malicious overdraft credit card fraud.This paper mainly discusses the identification of the subject when the cardholder is a complex entity,that is,the applicant and the actual user are separated.Through the analysis of several typical cases,the author concludes that when the applicant is informed of the subjective intention of the user,the applicant can constitute an accomplice or not constitute a crime.In addition,the author also puts forward some suggestions.In order to deal with the new problems under the new situation,can we bring the unit into the main body of the crime?The third chapter analyzes the judicial determination of the subjective elements of malicious overdraft credit card fraud.Mainly around the two high judicial interpretations,the six subjective presumptions discussed one by one,through the case analysis the controversial issues,and finally gives the author's own opinions and conclusions.Because of the subjective psychological state is difficult to grasp,although there are laws set six provisions of good,but the subjective intention of the cardholder or according to their specific financial background,credit rating and living conditions into consideration,can't easily determine the purpose of illegal possession.The fourth chapter analyzes the judicial determination of the objective elements of malicious overdraft credit card fraud,and mainly discusses the two contents of "collection" and "malicious overdraft amount".The author thinks that the two "collection" bank is necessary to constitute the crime,so the "collection" effectiveness,form,starting time and time interval in the law is not yet clear qualitative problems discussed,put forward their views and ideas.The malicious overdraft amount of this problem,the author thinks that in the calculation not only cannot contain compound interest,late fees and other costs are also not including normal punitive interest,norwill each has reached 10 thousand Yuan overdraft cumulative credit card overdraft amount calculation.For installment payments,only the portion that has expired after the bank has collected the grace period for more than 3 months can be deemed to be the amount of malicious overdraft.I hope that the author's views and suggestions can be helpful to identify malicious overdraft credit card fraud.