Research On Judicial Cognizance Problems About Malicious Overdraft Credit Card Fraud

Credit card fraud crimes in recent years still maintain the trend of multiple,and malicious overdraft type of credit card fraud crimes always occupy a large proportion.In addition to the low cost of crime and the failure of the card issuing institutions to fulfill their prudent obligations due to the indiscriminate expansion of business,the application of relevant laws is controversial in the judicial practice of identifying credit card fraud,which is also an important reason for the extremely high number of malicious overdraft credit card fraud cases.But reassuringly,with the deepening of the rule of law construction in China,the related judicial interpretation and regulations successively,greatly strictly the standard type of malicious overdraft of credit card crime of fraud into sin,especially on November 28,2018,the supreme people's court,the supreme people's procuratorate jointly issued the "the decision of Modifying the <Law Application Interpretation on handling the cases Of Impairing the Credit Administration> "(hereinafter referred to as "Modifying Decision "),the original type of malicious overdraft of credit card crime of fraud in judicial interpretation system modification,better carry out the criminal policy of tempering justice with mercy,It is conducive to equal protection of the legal rights and interests of cardholders and issuing Banks.However,there is still room for further explanation of the criteria of the crime and the elements of the crime constitution.Therefore,this2 paper sorts out and discusses several major problems in the objective,subjective and subjective aspects of malicious overdraft crimes,and analyzes and elaborates relevant real cases in practice and guiding cases of the supreme people's court,so as to provide references for relevant judicial practices.In addition to the introduction,this paper is divided into the following three chapters:The first chapter discusses the criterion of "Notification".It mainly includes two aspects.The first aspect is the judgment on the effectiveness of "Notification",including three specific disputes such as the influence of civil prescription on notification,the judgment on the effectiveness of notification methods,and the determination of refusal to return caused by improper notification.The second aspect is how to determine the improper performance of the doer after notification,including two controversial issues: whether partial restitution is overdue,and the influence of continued overdraft on notification.There are no provisions or omissions in the original laws and judicial interpretations on these issues,and the newly issued the "Modifying Decision" improves them but still leaves room for discussion.In theory the author according to law and legal theory,the notification of relevant issues are discussed in this paper,which should be set time limits for the bank's notification behavior,the effectiveness of the notification shall,according to general to determine social concepts,the notification properly when the offender refuses to repay loans should be based on specific circumstances,as to the offender is not appropriate to perform according to the specific situation to decide whether to belong to illegal.Chapter two discusses the identification of cardholders.Article 196(2)of the "Criminal Law" makes a clear provision for the cardholder,that is,"malicious overdraft as mentioned in the preceding paragraph refers to the overdraft beyond the prescribed limit or time limit for the purpose of illegal possession by the cardholder,which is still not returned after being collected by the issuing bank".Through the expression of the law,we find that only malicious overdraft type credit card fraud requires the behavior of the main body is the cardholder,so the understanding and identification of the cardholder will directly affect the identification of the behaviorand the application of the law.In judicial practice,the actual use of cards and illegal cardholders are often malicious overdraft as the actor,whether they belong to the cardholder is still very controversial,which is enough to cause us to think.Therefore this chapter mainly includes two aspects,the first is whether the cardholder belongs to the special status in the criminal law;The second is whether the actual cardholder is a cardholder or not,which is divided into the cardholder and the actual cardholder colluding or allowing their malicious overdraft,the actual cardholder maliciously overdraft when the cardholder is unaware,and the actual cardholder argues that subjectively overdraft belongs to borrowing rather than malicious overdraft.This chapter probes into the problem analysis,thought the malicious overdraft credit card fraud is a real status crime,or by credit card cardholder indulge actual conspires with,both constitute the accomplice of malicious overdraft,and in the cardholder knowledge,for the actual card are identified as using credit card type of credit card crime of fraud,if the actual card people do think that the subjective overdraft just borrowing,so still should assume corresponding responsibility by the cardholder.The third chapter discusses some problems about the illegal possession intent in detail,including the determination of the time when the illegal possession intent came into being,the counterevidence of the illegal possession intent and some other problems which are still controversial in practice and theory.The author thinks that the illegal possession intent must come into being at the beginning of overdraft according to the specific cases in judicial practice.In the case that the doer has repayment ability and repayment intention,unexpected factors lead to repayment failure and the bank has negligence,the presumption conclusion of the illegal possession intent can be negated;For the precise meaning of some words in the presumption of the illegal possession intent,more detailed provisions should be made.For each kind of presumption,corresponding evidence materials should be added to provide effective reference for practice.Finally,the existence of the disclosure clause in the presumption of the illegal possession intent is not reasonable.