Research On The Crime Of Malicious Overdraft Credit Card Fraud

In view of the high phenomenon of malice overdraft into the crime and penalty rates in recent years,it is necessary to look for the reasons from the judicial and legislative levels and find solutions to the problem.in judicial,according to the characteristics of the malicious through type of credit card crime of fraud of the present,the focus of judicial turns from the protection of the interests of the issuing bank and credit card management to protecting the cardholder's interests.The new judicial limits the standard of behavior determination,but Improves the level of the conviction and sentencing standards.The crime of malicious overdraft credit card fraud still exists,and it mainly shows in too broad definitions of the purpose of illegal possession and helpless calling-up.Starting from the standpoint of the doctrine of criminal law,this paper explains the purpose of illegal possession and helpless calling-up by combining theoretical and practical methods of analysis.Among them,the purpose of illegal possession includes the intention of causing others' property loss and the intention of illegal gain,but the former is a part of the cardholder's subjective intention.Judicial presumption for that purpose of illegal possession plays an important role,but it reduces the proof standard compared with the direct proof.To make the conclusion of the presumption is more close to the cardholder's true inner state,the principle of comprehensive judgment should be adhered to in the process of presumption,the cardholder should be allowed to prove otherwise and the principle of favoring the defendant when in doubt shall be adhered to,but objective imputation should not be prevented.helpless calling-up is not the constitutive condition of principal crime,but objective punishment condition,and its action is to limit the scope of criminal punishment not be used for presuming the subjective intent of cardholder's.Cardholder returned overdraft interest before first instance judgment should be exempted from investigating criminal responsibilityIn legislative,the regulation system of malicious overdraft of credit card should be improved.In this paper,it thinks that it is appropriate to regulatemalicious overdraft with the crime of credit card fraud by comparing the foreign related legislation,case law and theoretical perspectives.As the body of commercial law,the pursuit of issuing bank is efficiency rather than absolute fairness based on the feature of malicious overdraft " Reality's card " and the relationship of generation of malicious overdraft and the bank's business strategy.In the future,the individual bankruptcy system and the consummation social system should be adjusted by the civil law firstly.It can also force the issuing bank to regulate their behavior,and give cardholders a chance to turn over a new leaf farthest.