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Credit card fraud and judicial application of the theory to define_317

By Tiffany Simpson,2014-10-30 14:25
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Credit card fraud and judicial application of the theory to define_317

    Credit card fraud and judicial application of the theory to define

     Summary credit card fraud is a relatively new type of financial fraud. Credit card fraud to grasp the specific meaning of this crime and Peter crime Zuiyufeizui defined in

    the theoretical community and the administration of justice practitioners are there are more difficulties and disputes. In this paper, credit card fraud is more difficult to grasp in the two types of behavior - "the use of forged credit cards"

    and "malicious overdraft" behavior of the connotation of a more in-depth detailed analysis. Credit card fraud in the administration of justice identified a number of specific problems were discussed and put forward with the pass that a different view.

     Key words credit card / credit card fraud / crime / justice ... ...

     The so-called credit card fraud refers to the illegal possession for the purpose of obtaining public and private property using their credit card behavior. According to China's criminal law provisions of Article 196th, the use of forged or invalid credit card, fraudulent use of others, credit card fraud, as well as malicious overdraft, and if to achieve a relatively large amount, constitutes credit card fraud. Judicial practice, credit card fraud identified in the

    issues involved are more difficult this article, as well as in respect of only part of the controversial issues discussed with a view to consensus.

     1, on the "use of forged credit card" problem

     1. "Use" definition of meaning

     The so-called "use" in the general sense, understanding,

    including the use of credit card merchants to purchase goods on the bank or ATM cash withdrawal, and acceptance to make payment with a credit card settlement services. Such as the payment of transportation, accommodation, catering, entertainment expenses, and so on. For this point, generally not in dispute. However, after the sale of counterfeit credit cards to others, or given to other people's behavior, whether the "use", it remains controversial. Some people think that credit card fraud, no matter it was forged by their own use, or sold to others or give others in the use of forged persons, all belong to "use." [1] Another view is that the sale of counterfeit credit card forgery after, and only as "fake", not

    part of the "use" behavior. [2]

     We believe that the counterfeit credit cards and later sold or given to others to use the behavior is generally treated as "use" is not appropriate. Because the Criminal Code as a 177th of counterfeit credit cards have been forged or altered financial crime as a form of ticket, most people are either counterfeit credit card fraud for their own use or profit from the sale to others, in a few cases may also be sent to others. If you own use, selling it to others, as well

    as those who send others to their own use are regarded as forgery, criminal 177th article of "credit card fraud" constitutes the crime of forgery of financial provisions of the ticket on the largely ineffective, and a large number of

    counterfeit credit cards behavior will be credit card fraud offense. Only in two cases it may be handled by the crime of forgery financial ticket: First, credit card fraud have not yet had time after the sale, give as gifts or to himself for the fraud, he was captured; 2, despite already for sale, give as gifts or their own for fraud, obtaining property by deception, but did not meet credit card fraud provisions constitute a "large amounts" criterion. This is clearly contrary to the legislators to set falsifying, altering the

    intention of the crime of financial ticket. Moreover, the sale of counterfeit credit cards or fake cards to give to others be regarded as "use" in the judicial practice, a lack of operability. For example, a counterfeit credit cards that were

    sold to B, B to C to sell after the fare increase, C and then sold to small, in the Ding also did not use before he was arrested. If the sale of B, C acts as a "use", B, C three constitute the crime of credit card fraud (a forgery financial bills also constitute a crime, are implicated in crime).

    However, credit card fraud must be "large amounts" for elements, because of the small has not yet had time to use the counterfeit credit card fraud, so "large amounts" or not to speak of, and two pairs of B C is impossible to use credit

    card Fraud conviction (a ticket can be forged financial crimes), could not constitute the crime of attempted credit card fraud (since attempted the same must be "large amount" as the starting point). Two pairs of B C, the "sale" behavior is

    its all "use" behavior, its "use" behavior already implemented the end (if the "sale" as "use" it), regardless of the sale (ie "use" ) the number of counterfeit credit cards, credit card fraud but does not constitute a crime, and crime, which

    is composed of general principles of contradiction. In the above example, even small to use counterfeit credit card fraud, reached "a relatively large amount" standard, if the "sale" behavior as "use" behavior, the whole deal with the case for credit card fraud, you can only be A and B ting, four acts of a co-perpetrator (because the small amount of the fraud but also the amount of fraud as the B, C), but in fact, A and B and C will be concerned only with profit from sale of counterfeit credit cards, small credit card for fraud or

    continue to sell, they do not care, A and B or simply do not have any contact and Ding, C and D only on the sale of counterfeit credit cards to form desired, B, C and D do not exist between the meaning of fraud to contact does not have a

    common deliberately, not in conformity with the

    characteristics of the common criminal.

     For credit card fraud and later sold, or given to others to commit credit card fraud after fraud, or a simple sale of counterfeit credit cards, and simple to counterfeit credit

    cards sent to others to engage in fraudulent activities, whether it constitutes a crime of credit card fraud in the "use" counterfeit credit cards, it depends on whether there is collusion, there is complicity, and would constitute "use",

    there is no conspiracy, and does not constitute "use." For example, A and B conspiracy, credit card fraud by the A, B and use it for fraud, then the two actions are part of using a forged credit cards, credit card fraud if they meet the other

    requirements, it constitutes a credit card fraud. If there is no collusion between the A and B, then we were only on conviction to a financial ticket constitutes a crime of forgery, B constitutes credit card fraud. Right through a number of links reselling counterfeit credit card case and, if

    in the middle part of the reselling of these people, there is no collusion with the fake one, nor with the use of credit card fraud, conspired, its behavior is neither the "fake", not belong to "use." Because of China's criminal law does not

    provide for sale of counterfeit credit card crime, according to the principle of legality, the act can only be guilty processing.

     2. Both "forged" another "use" of how to conduct qualitative

     If the only acts of credit card fraud, or only the use of

    forged credit card behavior, qualitatively there is no dispute. But when the same act were both "forged" another "use" of behavior, qualitatively appeared in controversy. One view is that "fake" behavior and "use" behavior has the

    connections, it should be from a felony punishment, but because of the crime of forgery financial bills and credit card fraud of Legal Sentence of the same, to be made to Implicated Offense results in behavior that is Credit card fraud penalties. [3]; second point of view, forgery and using forged credit cards, although implicated in a crime, but should not be a crime but the number of crimes should be punished. [4]

     We believe that the same perpetrator behavior of both credit card fraud, another use of forged credit card behaviors should be treated separately distinguish different situations:

     (1) If a person is to act forged credit cards, but also the use of forged credit cards of others, then the two kinds of acts have infringed upon a variety of objects, should be

    based on the crime of forgery financial bills and credit card fraud multiple crimes.

     (2) If the perpetrator for the purpose of selling forged credit cards, for some reason did not sell after the success of the perpetrator's mens rea as well as new, using the forged credit card fraud, because before and after the two acts do not have the required Implicated Offender must be for a criminal purpose with the intent of the elements involved, it does not constitute a crime involved, but should be credit

    card fraud and forgery of financial ticket offense multiple crimes.

     (3) If the purpose for their own use of forged credit cards, their own use, forgery and use of the plot correspond with each other, one sentence in the same grade, you should

    press Implicated Offense credit card fraud a crime punished. For example, the forgery is a crime but before the "serious", and use of only up to "large amounts", in this case, the crime of forgery of financial ticket minimum 20,000 yuan Legal

    Sentence is a single Department a fine of not more than 20 million or less , while the minimum credit card fraud Legal Sentence is in prison, and must impose a 20,000 yuan fine of not more than 20 yuan, obviously after the crime of re-former

    Zuiqing, it should be a felony offense that is credit card fraud. If the forgery to achieve "the circumstances are serious", and use of to achieve "a huge amount, or there are other serious circumstances," or forgery to achieve "particularly serious", while the use of behavior to achieve

    "a huge amount, or there are other especially serious circumstances", due to In both cases exactly the same as Legal Sentence of two crimes, it shall also be Implicated Offense results in behavior that is credit card fraud penalties.

     (4) If the purpose for their own use counterfeit credit cards, and later their own use, forgery and use of acts constitute a crime, but in different grades of sentencing, places a heavier sentence on charges of grades convicted and punished. For example the large number of counterfeit credit cards, or multiple forgery, the forgery as "serious" or "particularly serious", while the use of behavior is only consistent with "a relatively large amount" or "huge amounts" of the sentencing grade, in which case, because according to

    the crime of forgery of financial penalties for emphasis on the ticket by credit card fraud punishment, and should be convicted before the sentencing.

     (5) If the first for the purpose of the use of forged credit cards, and later using the forged credit cards, and two kinds of acts constitute a crime, over a longer period of time, (such as a few months), the perpetrator also germination mens rea , forged a new card in another attempt to defraud, but not used or just to use when he was seized incident. This situation, the view that, for the previous behavior of forged and used by fixed Implicated Offender credit card fraud crimes, acts of the latter one is scheduled for the crime of

forgery financial bills, the implementation of multiple

    crimes. [5] In our view, this view is not appropriate, because before and after the two forgery in fact constitute the crime of forgery of financial ticket continuous guilty, though a number of crimes constitute the same species, but qualitative,

    it should be it as a a whole and subsequent usage behavior linked to the use of the entire act or acts of forgery by Implicated Offender treatment. Here again, should be divided into two kinds of circumstances, if the forgery before and after the two acts together, and the use of a sentence in the same grade, such as forged below the "serious", the use of only achieve "large amounts", according to credit card fraud punished. Taking into account the back of forgery at this time should be punished severely. If the entire forgery sentencing grade higher than the average behavior, such as forgery together before and after the two had reached "serious", the use of behavior is only to achieve "large amounts" should be punished by the crime of forgery conviction and sentencing of

    the financial ticket.

     Reposted elsewhere in the paper for free download http://

     Second, "malicious overdraft" are defined

     Malicious overdraft, according to the provisions of Article 196th Penal Code refers to the cardholder for the

    purpose of illegal possession of more than the prescribed time limit or overdraft limit, and the collection by the issuing bank even after the return of behavior.

     1. Malicious overdraft practices

     (1) the legitimate cardholder using effective malicious

    genuine card overdraft. Generally use the short period of time several times, and more or consumer without the need to obtain special authorization card-issuing bank the maximum amount,

    causing a huge overdraft after the escape and hide. Because

    China's banking system clearing means are relatively backward, unable to detect an overdraft account, while the re-use of

    credit cards and the merchants of the relative independence of the decision of the merchants accepting the transaction within

    the limits, only identification of credit card and signature is a real and effective, while the credibility of the cardholder's compliance and number of transactions can not be

    identified. Lawless elements take advantage of this point, through the repeated use within the limits to reach a large number of overdraft purpose.

     (2) the legitimate cardholder to use an invalid card remote really a huge overdraft. Some unscrupulous cardholder due to excess use of other reasons, credit card issuing banks

    have been included in the "stop-payment list" to become "black

    card", but the bank issued a stop-payment notice to the off-

    site the various merchants and banks received the stop-payment

    notice days or even 10 days between the time difference, lawless elements take advantage of this loophole is taken off-

    site overdraft or purchase, wantonly commit crimes.

     (3) the legitimate cardholder partnership with others to use remote malicious genuine card overdraft. As the cardholder single malicious overdraft, regardless of the use of invalid cards or valid cards are more easily detected, so lawless elements in the way the innovation, to take the so-called

    "private phase acceptable" means a malicious overdraft together. This is the number of lawless elements to the

    Mainland for malicious overdraft a common practice in a manner that, from one person to obtain credit card, pay the other shopping fun card to the mainland, forming a huge overdraft, a month or two later, when signing the bill be sent to purchase

    who receive the card, his departure will be holding there is no proof of travel documents to the bank accounts reported errors, the overdraft facility onto the banks. [6]

     2. Malicious overdraft limit and the amount of identified

     According to criminal law provisions of Article 196th, malicious overdraft must be "exceeding the prescribed limits or the specified period of time," to constitute. The so-called

    "exceed the prescribed limit" means the Regulation and Application of more than credit card credit card agreements

    specifically state that the overdraft limit. Whether it exceeds the limit, based on an overdraft credit card account balance after the calculated, rather than every time the overdraft amount. Overdraft limit each time failed to meet

    standards, but the balance above the limit, and it is super overdraft limit. Each time consumption or to take now also has a limit, called the transaction limit, which with the overdraft limit is different from every shopping, consumption

    or to take the present, amounted to transaction limit, the receiving unit to claim the right to card issuers, card-

    issuing agencies in accordance with the cardholder account balance and overdraft limit on the authorization, merchants, or savings bank in order to handle sum business, otherwise the

    losses caused by the admissibility of units held responsible. According to criminal law provisions of Article 196th, malicious overdraft must meet the "large amounts", that constitutes a crime. On how to calculate the amount of malicious overdraft, there are two different views. A view that should be in accordance with December 16, 1996 Supreme People's Court "to hear fraud cases on the specific application of the law interpretation of a number of issues" requirement in order to malicious overdraft for the amount of more than 5,000 large, malicious overdraft for more than 50 thousand yuan for the huge amounts of malicious overdraft for more than 200,000 yuan for a huge amount. Cardholder to pay in the bank deposit, and its malicious overdraft amount in excess

    of the amount of margin calculations. Another view was that it should be more than a certain multiple of the amount of overdraft, and should be higher than the other using a forged, canceled credit cards and fraudulent use of credit card the

    amount of crime as a crime, the standard starting point. On the grounds that the People's Bank in the April 1, 1996 issued by the "credit card business management methods" provision allows the overdraft limit for ordinary cards 5,000, Gold 10,000 yuan, overdraft period of 60 days. Cardholders in the statute limits and overdraft is its right within the time limit, so as to 5,000 as a starting point for a crime is clearly too low overdraft. And to multiply the amount of the standard is taken into account as a credit card to allow use of bank overdrafts and the use of the special nature of credit card overdraft situation is more complicated, and the use of forged, canceled credit cards and fraudulent use of credit card crime is different from others, and other factors, which

    is more reasonable. [7] We believe that the Supreme People's Court before the introduction of the new judicial interpretation on the amount of malicious overdraft provisions can only be so. However, this provision has clearly lagged

    behind the reality. According to the PBOC issued on March 1, 1999 came into operation on a "bank card management approach" (the People's Bank in 1996 issued "credit card business management approach" at the same time repealed) 45th section, the issuing bank shall comply with The following credit card

    business risk control indicators: A personalized card is the same amount of cardholder single overdraft occurs not more than 2 million individual cards on the same account overdrawn balance of not more than 5 million yuan (including foreign

    currency equivalent). 46th Article, quasi-credit card

    overdraft for up to 60 days. Under this provision, when the card-issuing banks in the card-issuing cardholder agreement

    with the maximum amount of 50,000 yuan on an overdraft. By a

    period of 2 months overdraft terms, within 2 months overdraft 100,000 yuan, or legitimate. Therefore, at present on the starting point for malicious overdraft provisions constitute a crime low, needs to be rectified. Because the malicious acts

    of overdraft and credit card fraud, compared to other acts of criminal means, regardless of subject, objective aspect, or the subjective aspect has its own particularity, it could provide a higher level of standard. As for the amount of malicious overdraft overdrawn by more than the legal amount of a certain multiple of the calculation point of view, but also a lack of operability. As mentioned above, good base overdraft too, such as the amount of malicious overdraft of crime in its multiple terms, it was clear that the standard is too high, and credit card fraud and other means to conduct the amount of the standard difference too great, nor reasonable. The appropriate practice is issued by the Supreme People's Court in the new judicial interpretations of the provisions of a

    malicious overdraft amount is higher than other means the amount of credit card fraud standard. In addition, the overdraft amount should be only the principal terms, and not be able to interest charged.

     Malicious overdraft limit constitutes a crime, according

    to whether the overdraft is over the threshold is different. In the limit within the overdraft, the overdraft period of 60 days, over the period, the banks will be collection. In the income, overdraft, the overdraft conduct an implementation is

    illegal, and banks often send collection notice soon. Supreme People's Court in 1996 under the provisions of judicial interpretation, malicious overdraft to avoid tracing, or from the card-issuing bank received notice from the date of

    collection within 3 months not returned, it constitutes a crime.

     3. Finds that it must be malicious overdraft "collection is not also" for the element

     China's criminal law clearly stipulates that only banks do not repay these loans after collection, would constitute a

    malicious overdraft. For this provision, has always been China's criminal law scholars have different views. The view was expressed that this requirement is both unreasonable and difficult operation, that judicial practice has repeatedly

    been found cardholder of a bank overdraft of the act or malicious Although discovered but not yet issued to the cardholder and the perpetrators had been arrested Urgency the case, then the bank has not been able to despite warnings, the judiciary can be arbitrarily set free criminals do? [8] was also expressed that the provisions of this element, there are the following questions: First, in practice, the card-issuing

    banks, "collection" hard to identify the cardholders often denied the bank had been collection for various reasons, so that banks at a disadvantage . Second, due to population movements and other factors, banks sometimes can not be found in the collection cardholders, collection more difficult. Third, the "collection invalid" means exactly clear how long

    after collection to return to "the effective collection," and some restitution is regarded as a "collection invalid" and so on, not clearly defined. Fourth, because the cardholders credit card in the bid to host the card-issuing bank when they

    already know about the provisions on the overdraft facility, to "knowingly" behavior no longer have to attach any condition to be able to define it as violation of rules violations, such as a further additional conditions, is undoubtedly the negation of the existing provisions. Fifth, states that "collection ineffective" element, the cardholder would cause "may from time to comply with the provisions of" the impression that this is not conducive to foster the concept of law-abiding cardholders, is not conducive to the relevant

    laws, regulations, the implementation of . [9] view was also expressed that, in most cases, provides that "collection is not also" This requirement is reasonable. But the irrational is that we may indulge some obvious malicious overdraft fraud.

    For instance, some lawless elements in the bank bid to host the credit card, on the run offenses, assault to take the current consumption, wantonly squandered or cases escaping with money, its a huge amount of overdraft or even huge, obviously beyond their repayment ability, illegal possession and obtaining property by deception intentional Obviously, if the behavior of such overdraft request "collection by the bank

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