The crime of credit card fraud has the following characteristics in terms of criminal composition:

(1) Criminal subject. According to the criminal law, the criminal subject of this crime is a general subject and can only be composed of natural persons. There are the following issues among the criminal subjects:

1. Can the unit become the criminal subject of this crime? There is disagreement among academics about this. The negative theory is that there is a limit on the amount of credit card use, and the company does not need to take the risk to defraud such a small amount of property. The affirmative theory holds that corporate cardholders can commit malicious overdrafts and other credit card fraud behaviors under the will of the company, and in practice, there have been cases of huge or even extremely huge malicious overdrafts by companies. We believe that units can and should become the subject of this crime. Because:

(1) According to the issuing objects, credit cards are divided into corporate cards and personal cards. Since the company can be the legal cardholder and user, it can certainly carry out fraudulent activities such as malicious overdrafts. According to the provisions of the "Bank Card Business Management Measures", the allowable overdraft amount of an organization (whether it is a single overdraft amount or a monthly overdraft amount) is larger than that of an individual. If an organization maliciously overdrafts for the purpose of illegal possession, the amount will also be very shocking. However, there is no legal basis for imposing penalties on units, which is obviously inappropriate.

(2) According to the provisions of Article 177 of the Criminal Law, an organization can become the criminal subject of the crime of forging or altering financial instruments. It is entirely possible for an organization to forge credit cards in order to commit credit card fraud. If there is no provision for an organization to become a credit card entity The criminal subject of the crime of fraud can only be held criminally responsible for the means behavior, but not the criminal responsibility for the purpose behavior, which is inconsistent with the principle of constituting an implicated offender.

(3) Criminal legislation should be coordinated. The crime of letter of credit fraud, which is similar in nature, can be committed by an entity, while the crime of credit card fraud can only be committed by natural persons. There is obvious lack of coordination in legislation.

For this reason, we suggest that when the criminal law is revised, it should be stipulated that the crime can be committed by either an entity or a natural person. However, before the revision, the criminal liability of those directly responsible could only be pursued in accordance with the principle of legal punishment.

2. Are criminal entities who use invalid credit cards or malicious overdrafts to commit fraud only limited to legal cardholders?

Some people believe that the subject of using a disabled credit card can be the cardholder or someone other than the cardholder. But some people think that it can only be composed of cardholders. There are many opinions on the subject of malicious overdraft behavior. To sum up, there are no more than two theories: affirmative and negative. In this regard, our opinion is that the subjects of these two behaviors can only be the cardholders themselves, and people other than the cardholders cannot become criminal subjects except for committing the same crime.

For a canceled credit card, no matter what the reason is, if other people (relative to the cardholder) can become the subject of the action and are convicted and punished when they really do not know that it is a canceled credit card, they may violate the The principle of criminal law is consistent between subjectivity and objectivity. When a perpetrator uses an expired credit card, regardless of whether he or she knows whether the credit card is expired, he or she needs to use someone else's name to commit fraud. Therefore, if someone else uses an expired credit card, the act of "pretending to use someone else's credit card" can be criminalized.

Malicious overdraft is relative to good-faith overdraft. Good-faith overdraft is the institutional basis for the existence and operation of credit cards. Malicious overdraft is the abuse of overdraft rights for the purpose of illegal possession. The nature of the behavior has completed the transformation from a breach of contract in private law to a criminal act in public law. The two have subjective characteristics. Identity. Others use credit cards to consume or withdraw cash in order to illegally occupy public and private property. This is not an overdraft behavior, but a direct fraud.

Do the malicious overdraft subjects include "people who defrauded credit card users"? Some people believe that a detailed analysis of "people who fraudulently obtain credit cards" is necessary to draw a conclusion. If credit card fraud can be divided into well-intentioned fraud and malicious fraud, the difference between the two lies in whether there is the purpose of illegally possessing public or private property when receiving the credit card.

If the credit card is fraudulently obtained due to imperfect procedures, if the perpetrator uses the credit card properly in accordance with the provisions of the credit card management regulations and articles of association after receiving the credit card, he can be called a "bona fide fraudster". If the perpetrator fraudulently obtains the credit card for the purpose of committing fraudulent activities, It can be called "maliciously deceiving people". "Maliciously defrauding people" for the purpose of committing a crime is certainly not an overdraft issue, so it cannot be the subject of this crime. If a "well-intentioned fraudster" acts in accordance with the credit card business management regulations, it has no criminal law evaluation significance; once he commits a malicious overdraft, it should be presumed that he has a subjective purpose of illegal possession. At this time, how do we define his claim? Whether there was criminal intent when using the credit card. Therefore, there is no practical significance in classifying defrauding people into good intentions or malicious ones from the perspective of the criminal subject. Because of this, we believe that defrauding people cannot become the main criminal subject of malicious overdraft.