Legal Characterization And Regulation Of Online Virtual Credit Cashing

Under the irresistible network tide,"Internet plus" has a profound impact on our lives,and e-commerce is one of the representatives.Stimulated by E-COMMERCE,it has also given birth to a third-party payment platform,changing the traditional bank payment method,while we enjoy its convenience,there are also frequent criminal acts committed by using Internet finance.Among them,the network virtual credit arbitrage emerged,triggering a heated and extensive discussion in the theoretical and practical fields.The focus of dispute on virtual credit cashing is whether the virtual credit payment products can belong to credit card,and then apply the relevant laws and regulations on credit card crime to regulate it.There are three opinions about this dispute in the academic circle,one is the crime of Larceny,the other is the crime of credit card fraud,and the other is the crime of illegal operation.The main reasons that can be classified as Larceny are: Although virtual credit payment on the Internet is similar to credit card,it is in a kind of advanced consumption based on credit,however,the lack of network virtual credit payment products for the credit card system,so it can not be considered as a credit card fraud.The main reasons that can be blamed on credit card fraud are:Although our country's criminal law does not regard the overdraft service provided by virtual credit payment on the Internet as credit card service,although there are some differences between them in form,they can be interpreted as a kind of "electronic credit card" by the method of expanding interpretation in Criminal Law.It has also been argued that the intention of the person who fraudulently cashes a fictitious credit in another's account is to unlawfully take possession of the money cashed and transfer the debt owed to the fictitious credit to the original account holder for repayment by the original account holder,this approach is in line with the judicial interpretation of malicious overdraft elements of the identification,it can be convicted of credit card fraud.The main reasons for incriminating illegal business operations are: the cash-out mode of using third-party online payment platform is similar to that of credit card,but it can not be regulated directly by judicial interpretation,and consumer credit is a financial business that has been brought into the field of financial markets and is subject to strict supervision by the competent financial authorities.Therefore,the defendant's behavior is a business behavior that involves in the field of financial markets and is closely related to financial business activities,in addition,the defendant's conduct is unauthorized,there is illegality,according to the amount also has the characteristics of serious circumstances,thus establishing the crime of illegal business operations.In order to clarify whether the crime can be admitted,it is necessary to make an accurate legal analysis and qualitative determination of the subject of crime,the act of crime and the instrument of crime.This paper holds that we should first characterize the legal nature of the third-party payment platform on the Internet,which is only a platform for currency payment,cash flow,fund settlement,and query and statistics,and is not a financial institution.Secondly,it analyzes the qualitative network virtual credit payment product,which is a consumer credit contract that is convenient for the creditor and the consumer by providing deferred payment,loan or other currency financing methods.Finally,it analyzes whether the third-party payment platform of the qualitative network has engaged in the funds payment and settlement business in the sense of criminal law,and then considers whether to apply the crime of illegal operation.This paper analyzes the system reasons of the appearance of virtual credit arbitrage,which are mainly due to the imperfection of credit information system and the absence of existing laws and regulations.Therefore,the solution should start with perfecting the credit investigation system and the system of laws and regulations.We should improve the platform's own credit supervision to consumer groups,appropriately raise the threshold and standards of applying for credit consumption,set rules of attention,contractual liability and criminal liability warning;We will establish and improve a comprehensive internet-based financial credit evaluation system,establish and improve an internet-based inter-bank database,realize information sharing between internet-based finance and the credit reporting system of the People's Bank of China,and establish and improve mechanisms for protecting the rights and interests of credit reporting entities.Improve the relevant laws and regulations,including the illegal business operation of the relevant provisions of the judicial interpretation,the judicial interpretation of the relevant amendments to improve.At the same time,we should keep the modesty of the criminal law,pay attention to the systematic regulation of the network virtual credit cashing,and avoid the over-legislationism.