Research On The Components Of Malicious Overdraft Credit Card Fraud

The overdraft function of credit card not only facilitates people's life,but also leads to the occurrence of a large number of criminal cases.According to the data obtained in this paper,it is found that the malicious overdraft cases of credit card account for 83.71% of the total number of cases of credit card fraud.At the same time,on December 1,2018,the two high authorities issued a judicial interpretation on the criminal cases of obstruction to credit card management.In order to accurately identify the crime,to reduce the rate of the crime.Firstly,this paper starts with the analysis of the judicial status of the crime of malicious overdraft credit card fraud,sorts out and analyzes the overall proportion of this crime in the crime of financial fraud,and the data of the subject of the crime and the amount involved are also sorted out and analyzed.On the one hand,it has a more comprehensive grasp of the criminal characteristics of this crime through data sorting.On the other hand,it finds the controversial problems in practice during the sorting process.As a result,it failed to conclude the case after the first-instance judgment.The number of appeal cases caused by these controversial factors has been increasing,so it is necessary to analyze and solve them.Therefore,these controversial issues are identified through the sorting of judicial data,which lays a foundation for the following analysis and settlement of these issues.Secondly,based on the conclusion of the disputes,this paper analyzes these disputes and gives the corresponding solutions.Firstly,this paper studies and analyzes the objective of illegal possession.43.75% of defense lawyer is no purpose of illegal possession for the defendant appeal,for the purpose of illegal possession of controversial is bigger.Based on this,this paper first for the purpose of illegal possession of identifying principle and concrete path to do the analysis,think should follow the principle of consistent subjective and objective and from card,using card,payment shall be determined,not only according to the collection is that the defendant not guilty.Secondly this paper argues that the bank failed to achieve the effective collection,the cardholder because of objective reason failed to timely payment and new repayment agreement with the bank can become illegal possession purpose of disproof.Finally,the paper analyzes the legal relationship between "the purpose of illegal possession" and "collection and non-return",and holds that "collection and non-return" is an independent element of the crime rather than the presumption of the purpose of illegal possession.Again,in this paper,the objective elements "crime amount" to do the analysis and research,in the financial fraud crime amount depends on the size of the can achieve penalty points,and different amount of results obtained from the calculation method is different,in turn,affects the establishment of the crime or not.This article first to the malicious overdraft and other types of behaviour,such as using crime amount when how should that do the analysis,including the amount of crime in both separate all reach the punishment point under the situation of its cumulative addition and can not be convicted,but should be resolved through civil law.Penalty points in one type to another kind of short of cases,shall be convicted and punished to constitute a crime types,for does not constitute a crime of illegal income in the previous trial shall be in the form of civil suit collateral to criminal proceedings.Under the circumstance that the amount of the two types of crimes both reach the starting point of punishment,they should be convicted separately,and then they should be punished together in terms of sentencing.Second in case of installment payment,the amount of outstanding can't calculate the crime amount,because in addition to can't determine the cardholder to the outstanding amount with the purpose of illegal possession,another important reason is the effect on outstanding part of the collection,so can't calculate the amount of of the crime.In the end,"the cardholder" of the main elements are analyzed,this paper argues that type of malicious overdraft of credit card crime of fraud of the cardholder belongs to general rather than specific subject,crime,the criminal subject and no identity on request.Next,this article will be one card separation situation into a conspiracy to use a credit card for the person and no collusion,in collusion,the people of the original credit card and the actual user evaluation based on joint crime intentionally with the cardholder,in case of no collusion,if the actual user by theft or robbery and other illegal means to obtain credit cards and use,can't be malicious overdraft crimes of the cardholder.With members of the family relationship between the use of credit behavior,the actual user evaluation for cardholders.