Research On Judicial Determination Of Malicious Overdraft Credit Card Fraud

Credit card,as the name suggests,is to use the cardholder's credit as proof of payment and credit.In recent years,major banks and small and medium-sized banks have generally pursued the rapid development of their own economy,but the traditional savings business has long been unable to meet their development requirements.As a result,banks have undergone business transformation and increased the number of credit cards issued,which has led to Credit card overdrafts occur frequently,and the number of cases only increases,and there is a growing trend.The judicial determination standards for the crime of credit card fraud have undergone two revisions.Although these two revisions further regulate the connotation of the constituent elements,the crime of malicious overdraft credit card fraud still has difficulties in judicial determination.This article introduces typical cases,analyzes and summarizes the controversial focus problems in the cases,and combines legal regulations and criminal law theory to analyze and discuss,in order to provide some reference suggestions for the judicial determination of malicious overdraft credit card fraud.First,in order to clarify the scope of the crackdown,the subject of the crime must be accurately identified.Cardholders include registered cardholders and actual users who have control over the credit card;and when the registered cardholder and the actual user are inconsistent,they should discuss the situation based on the common crime theory based on the case;at the same time,the unit Listed as the subject of the crime of malicious overdraft credit card fraud,in order to determine a more reasonable scope of cracking down on the subject.Secondly,the determination of the purpose of illegal possession also plays an important role.When determining the specific case,it is necessary to combine six legal situations to make a comprehensive judgment.The subjective maliciousness of the cardholder and the collection behavior of the issuing bank have an important impact on the determination of the cardholder 's illegal possession purpose.Again,the collection should pay attention to emphasize effectiveness.The standard of effectiveness of the collection is to adopt "overdraft received",emphasizing that it is more persuasive to arrive rather than issue,and itreflects that the bank has fulfilled its responsibilities.The effectiveness of third-party collection should be judged in accordance with the legality of the third-party collection behavior.If illegal collection is used,collection will be invalid and vice versa.Strictly control the effectiveness of collection,standardize collection methods and time intervals,and accurately define the effectiveness of collection.Finally,the amount of malicious overdraft also affects the level of access crimes and sentencing.Only the principal should be included in the calculation of the amount to be more in line with the humility of the criminal law.The calculation of the amount when multiple types of credit card frauds are concurrent should not be discounted proportionally,but the amount should be accumulated and punished according to a lighter sentence It is reasonable.