| In recent years,judicial practice of such crimes has been frequently used.Therefore,we need to discuss this theme from the criminal legislation and judicial practice,and making some perfect suggestions on the regulation path of malicious overdraft behavior.It can be seen from the constantly updated judicial interpretations that the focus of protection when committing such crimes has shifted from ensuring the interests of banks and country’s management to protecting the cardholder’s rights and interests.However,despite the judicial interpretations issued in 2018 restricting and detailing the relevant issues in the execution of this crime,there still have some different opinions in judicial practice about how to define the crime.These differences are mainly manifested in the following three aspects:questions about whether the "cardholder" is a special identity,does they have " the purpose of illegal possession",what is the status of the cardholder who does not pay the money after being collected by the bank?This article aims to discuss these three main issues.The first part is a general overview about the theme.It define the connotation of this theme,and explains the difference between civil debt and the crime,classifies the overdraft behavior based on the subjective purpose as the standard,and distinguishes the crime from the non-repayment of loans,thereby limiting the scope of criminal law evaluation.Looking at the relevant legislative trajectories,we can see that our country initially judged this behavior as a general fraud.For this judgment,scholars in the criminal law circle of our country have some controversies:some people think that our country’s current regulations are very reasonable,some people think that there should be a separate charge for malicious overdraft behavior.The reason of the different views is that the criminal law scholars have different understandings of the nature of this crime.Judging from the updated judicial interpretation,it increasingly focuses on the protection of cardholders’ interests.However,it still lacks the relevant details of the application of this crime,Therefore,it is necessary to conduct specific research on these issues.The second part of this article mainly completes these tasks: the first aspect is to define the meaning of the cardholder,the second aspect is making a reasonable judgment and corresponding analysis on the nature of the offender in various special situations on this basis.The author believes: First,when two parties commit an act out of conspiracy,the two actors can be regarded as a joint crime.Secondly,the legal cardholder who applied for and registered with his real identity delivers the credit card he applied for to the actual cardholder for storage and use.The actual cardholder used this credit card to commit a criminal act,and the legitimate cardholder knows that the behavior is a laissez-faire behavior subjectively,these two behaviors are actually equivalent to conspiracies.Therefore,the cardholder should be convicted and punished for this crime,and the actual use of the credit card for malicious purposes should be convicted and punished for false conspiracy to defraud the credit card.Thirdly,when the offender applies for a credit card in the name of the cardholder without knowing it and uses it for malicious overdraft behavior,the cardholder will not constitute any crime out of criminal intent.The third chapter is the evaluation and analysis of the subjective presumption in crime.It discussed the basis of the accountability system,formal standards and normative standards.The fourth part analysis about the elements of urged repayment,and demonstrates that "not repaid upon collection" is the objective punishment condition for this crime.At the same time,in response to the issue of the return subject,it is proposed that in the case of the cardholder or the guarantor returning the overdraft funds,it can meet the benefit measurement outside the criminal law to prevent the establishment of objective punishment conditions,and no penalty is required.The fifth part are some suggestions about the relevant regulatory path.The first point is that it is necessary to discuss the nature of malicious overdraft behavior.This article believes that my country’s current criminal law is scientific and reasonable.The second point is that since the conviction rate for this behavior is high in judicial practice,it can be improved in terms of restricting crime conditions.This needs to start from the following aspects: Firstly,objective accusations should be prevented,the cardholder should be given the right to produce evidence,and the principle of benefiting the defendant should be adhered to when in doubt.Secondly,the time frame for the perpetrator to return the overdraft can be extended to before the initial trial;thirdly,we can start with the personal bankruptcy system and credit system,and establish a civil law system that matches the criminal law. |
