Research On Judicial Determination Of Malicious Overdraft Credit Card Fraud Crime

Since the reform and opening up for 40 years,the economy has been rapidly modernizing,and credit cards have gradually become an efficient and convenient way of transactions between banks and customers.Although credit cards can bring fast and convenient trade payment methods to the society,the phenomenon of excessive use of credit cards and delayed non-return of overdrafts continues to occur in life.In order to suppress the occurrence of such things,protect the rights of citizens and play a legal deterrent and preventive role,Officials are more focused on the application of the criminal law,and most of them are identified as malicious overdraft credit card fraud.Although legal retribution is achieved and legal order is restored,it violates the modest and restraining nature of the criminal law.In this context,this article conducts a series of studies on the development process of the crime of malicious overdraft credit card fraud,the behavior of the crime,and the subjective and objective elements in judicial determination.Based on the analysis of the constitution of the crime of fraud,the identification and determination of the purpose of malicious overdraft and illegal possession,the problem of identifying the crime of malicious overdraft credit card fraud is put forward;the reasons for the identification of this crime are explained from elements such as behavioral mode and subjective intention;explore the correctness The path to find the crime.Finally,reflection and foresight how to return to the restraint of criminal law.This article hopes to start from restricting the identification of malicious overdraft credit card fraud crimes,calling for the use of the criminal law with caution to achieve a tightening of the scope of criminal law adjustment.This article begins with an overview of the basic composition of the general fraud crime,malicious overdraft and the purpose of illegal possession,and reflects the particularity of the criminal overdraft credit card fraud.This crime is a special crime of fraud.It carries out malicious overdraft for the purpose of illegal possession on the basis of the general crime of fraud.Therefore,when determining this crime,the purpose and malicious intention of illegal possession of the perpetrator must be made on the basis of the crime of general fraud.Overdraft is recognized.Therefore,only when the purpose of illegal possession and malicious overdraft are clearly defined,can the perpetrator's overdraft behavior be further evaluated.After a brief overview,the second chapter of this article puts forward in detail the specific manifestations of the crime of malicious overdraft credit card fraud in the judicial determination,supplemented by actual typical cases.In the third chapter,we analyze the causes of this crime.First of all,it has done necessary research on the origin and development of the establishment of this crime,combined with the historical sources of my country's criminal law,and analyzed that judicial personnel are affected by the standard idea of criminal law when determining behavior.Especially when the crime was first established,in order to make up for the lack of protection of the rights and interests of the parties in the civil laws and regulations,we turned our attention to the criminal law.Secondly,the composition of the crime of malicious overdraft credit card fraud provides a standard for the determination of this crime.This article analyzes the cause based on the subjective and intentional content.The identification of the nature of overdraft depends on the determination of the purpose of illegal possession,and the alleged purpose of illegal possession can only arise when the overdraft is implemented.In short,the criminal law can only crack down on malicious overdrafts with the purpose of illegal possession;knowing that the purpose of illegal possession and a large number of overdrafts must be determined separately and independently must also be mutually formed to verify subjective intention after each determination,and know that they are The knowledge at the time of the behavior is only justified based on the objective economic state of the perpetrator at the time of the overdraft behavior.Finally,regarding the different identifications of the non-return system status of the collection will also lead to different identifications of this crime,this article will separately state the three theories.However,no matter which theory it is based on,the collection is not just a judgment data,and it cannot be directly identified as subjective maliciousness.This article adopts objective punishment elements and says that when the actor returns the arrears after collection by the bank,the actor can no longer profit from the overdraft behavior,and the behavior is no longer socially harmful,so there is no need to pursue criminal responsibility.After analyzing the cause of the problem,this article begins to explore how to correctly identify the crime.The legal principles obtained in judicial practice provide a certain foundation for the justice with most recognized powers in the legal community.Legal principles and constitutional norms jointly build a legal ethics system.The existence of the system will be explained by the norms and the justice concept system in the legal order.Therefore,the determination of this crime cannot be separated from the guidance of the legal and ethical system.This article is guided by the principle of modest to launch a discussion on how to correctly identify the crime.First of all,the intentional content of this crime is too broad and requires strict interpretation.In the judicial interpretation,the purpose of illegal possession has been defined and enumerated in detail.However,in the determination,the crime must not be determined to be the crime based on the act conforming to a certain paragraph in the judicial interpretation.It must be judged strictly by combining multiple objective facts.Secondly,massive overdraft is a concept under malicious overdraft,and the definition of massive overdraft cannot be separated from the scope of malicious overdraft.And the clearly recognized scope is the state of financial ability at the time of the individual's behavior,not the ability to repay at that time.Finally,this article recognizes the nonreceipt of collection as an objective punishment element,because the perpetrator returns the property after the collection,there is no need for special prevention,and there is no need to penalize the criminal law,and the collection referred to here must be a strict and effective collection.With the deepening of our country's society under the rule of law,criminal law and civil law have jointly built a legal dam to prevent crime,but in this dam,criminal law should be the last line of defense.