1. Malicious overdraft of credit cards may constitute the crime of credit card fraud.
1, the objective expression of credit card fraud:
(1) Use a forged credit card, or use a credit card fraudulently obtained with false identification;
(2) Using an invalid credit card;
(3) Fraudulent use of another person's credit card;
(4) malicious overdraft.
2. Definition of malicious overdraft
For the purpose of illegal possession, if the cardholder overdraws beyond the prescribed limit or time limit and fails to return it after two effective collections by the issuing bank for more than three months, it is a malicious overdraft.
Second, the identification of malicious overdraft credit card fraud
1, the cardholder has the purpose of illegal possession.
The purpose of illegal possession should be judged according to the cardholder's credit history, repayment ability and willingness, the application and overdraft of credit cards, the use of overdraft funds, the performance after overdraft, and the reasons for not repaying according to regulations. It is not allowed to identify the purpose of illegal possession just because the cardholder fails to repay the loan according to the regulations.
If the cardholder has any of the following circumstances, it shall be deemed to have the purpose of illegal possession, unless there is evidence to prove that the cardholder does not have the purpose of illegal possession:
(1) knowing that there is no repayment ability, a large number of overdrafts cannot be returned;
(2) After applying for a credit card with a false credit certificate, it is overdrawn and cannot be returned;
(three) after the overdraft, by escaping or changing the contact information to avoid bank collection;
(4) Withdrawing or transferring funds, concealing property or evading repayment;
(five) the use of overdraft funds for criminal activities;
(six) other illegal possession of funds and refused to return.
2. The cardholder uses the credit card to spend money and overdraws beyond the prescribed limit or time limit:
"Large amount": the amount is more than 50,000 yuan but less than 500,000 yuan;
"Huge amount": the amount is more than 500,000 yuan but less than 5 million yuan;
"The amount is extremely huge": the amount is more than 5 million yuan.
3. If it is not returned after being urged by the issuing bank:
Effective collection shall meet the following conditions:
After the overdraft exceeds the prescribed limit or time limit;
The collection shall be carried out in a way that can confirm the cardholder's collection, except that the cardholder intentionally evades the collection;
The interval between two collections shall be at least 30 days;
Abide by the regulations or agreements on collection.
Third, the criminal responsibility of credit card fraud.
(1) If the amount is relatively large, he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan;
(2) If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan;
(3) If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan, or his property shall be confiscated.
legal ground
Criminal law of the people's Republic of China
Article 196 Whoever commits credit card fraud under any of the following circumstances, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan; If the amount is especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated property:
(a) using a forged credit card, or using a credit card fraudulently obtained with a false identity certificate;
(2) Using an invalid credit card;
(3) Fraudulent use of another person's credit card;
(4) malicious overdraft.
The term "malicious overdraft" as mentioned in the preceding paragraph refers to the behavior that the cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and refuses to return it after being urged by the issuing bank.