After the credit card is overdue, we should pay special attention to the risk of criminal responsibility to avoid the crime of credit card fraud.
Article 196 of the Criminal Law provides as follows:
Malicious overdraft and credit card fraud, 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; 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.
In order to avoid the crime of credit card fraud, we need to know clearly how much and how long it will be considered as malicious overdraft.
Combined with the judicial interpretation of "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Impairment of Credit Card Management", this paper analyzes three issues in detail.
1. How much will it be considered as malicious overdraft?
Article 8 of the judicial interpretation stipulates that if the amount of malicious overdraft is more than 50,000 yuan but less than 500,000 yuan, it shall be deemed as "a large amount" as stipulated in Article 196 of the Criminal Law;
Article 9 of the judicial interpretation stipulates that the amount of malicious overdraft refers to the actual overdraft principal amount that has not been returned when the public security organ files a criminal case, excluding interest, compound interest, late fees, handling fees and other fees charged by the issuing bank. The amount returned or paid shall be regarded as the return of the actual overdraft principal.
Combined with judicial interpretation, in short, a malicious overdraft of a credit card with an amount exceeding 50,000 yuan is suspected of a criminal offence.
2. How long will overdue be considered as malicious overdraft?
Article 6 of the judicial interpretation stipulates that if the cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and the card-issuing bank effectively collects it twice and fails to return it for more than three months, it shall be deemed as "malicious overdraft" as stipulated in Article 196 of the Criminal Law.
Article 7 of the judicial interpretation stipulates that "effective collection" requires an interval of at least 30 days between two collections.
So simply calculate, after the credit card is overdue, the interval between two collections needs 30 days, plus it takes three months after the collection, so this cycle needs at least four months.
Simply put, returning a credit card within 4 months after it is overdue will not be considered as a malicious overdraft. If it is not returned for more than three months after two collections, it can be considered as malicious overdraft.
3. The bank really reported the case. what can I do?
Article 10 of the judicial interpretation stipulates that if the amount of malicious overdraft is large, it will be returned in full before the prosecution, or if there are other minor circumstances, the prosecution may not be initiated; If all of them are returned before the judgment of first instance or there are other minor circumstances, they may be exempted from criminal punishment. Except for those who have been punished for credit card fraud for more than two times.
Simply put, after the bank reports the case, it can be returned as soon as possible, and it can be exempted from prosecution or criminal punishment.