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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