| With the continuous development of China’s market economy,different groups of people begin to favor credit cards for consumption,which directly leads to the geometric growth of credit card business in recent years.As a result of the emergence of a large number of credit card use,it is inevitable to increase the occurrence of a large number of credit card overdraft.Therefore,malicious overdraft credit card fraud cases also show a high frequency of the situation.Investigate its reason,first is the crime cost of this crime is low,the doer after overdraft exceeds the prescribed limit and the time limit does not repay has the objective behavior of this crime;Second,the credit card issuing banks fail to fulfill the duty of prudential supervision in the process of issuing bank cards,which leads to a large number of credit cards being issued and entering the market.Third,the judicial application of the crime is still controversial,it is difficult to form a unified conclusion in the specific judicial determination.According to statistics,from more than 700 pieces in 2010 to more than 7,000 pieces in 2019,an increase of 791.21%.In view of this situation,the state has also introduced laws and relevant judicial explanations to crack down on malicious overdraft credit card fraud,which helps to protect the stability of the credit card market and the healthy development of the national financial order.Although the state has promulgated a series of laws and judicial interpretations including some specific provisions to regulate this type of cases,the complexity and changeability of cases in practice still lead to doubts and disputes in the specific identification of such cases in the process of judicial application.Through the study and analysis of the cases in practice,this paper thinks that this crime belongs to the real identity crime,and its eligible subject can only be the legal cardholder,other cardholders can not become the subject of this crime,but other cardholders may be convicted and punished on other charges;In the identification of the purpose of illegal possession of the crime,we should strictly distinguish the psychological state of the actor before and after the overdraft,grasp the time when the actor’s subjective malicious and a series of follow-up actions after the actor overdraft funds,which will have an important impact on the identification of the purpose of illegal possession.Bank collection as this crime procedural requirements on the judicial cognizance is also very important,first of all,the bank’s collection includes not only written oral form,it is convenient for bank and actors are good,the second bank should have a certain amount of time between two collection,set aside time for prepare payment for behavior,in the end,the bank’s collection should adhere to the validity,namely the effect when the bank’s collection,payments must meet the conductors to prevent Banks from the collection of payments,rather than any payments can be,to a greater degree of protect the interests of the bank and the development of economy.Through the analysis and elaboration of the above aspects,this paper hopes to provide some judgment standards for some vague problems existing in the judicial application of the crime of malicious overdraft credit card fraud,so as to restrain the improper expansion of the crime of malicious overdraft credit card fraud in judicial practice. |
