Article 196 of the Criminal Law stipulates that whoever commits credit card fraud in 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 2, yuan but not more than 2, 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 5, yuan but not more than 5, yuan; If the amount is especially huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 1 years or life imprisonment, and shall also be fined not less than 5, yuan but not more than 5, yuan, or his property shall be confiscated: < P > (1) using a forged credit card or using 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.
the malicious overdraft 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.
whoever steals a credit card and uses it shall be convicted and punished in accordance with the provisions of article 264 of this law.
[ Edit this paragraph] The concept and composition of the crime of credit card fraud
The crime of credit card fraud refers to a large amount of fraudulent activities with credit cards for the purpose of illegal possession.
The constitutive elements of the crime of credit card fraud are as follows:
1. The object of this crime is the credit card management system and the ownership of public and private property.
2. The objective aspect of this crime is the behavior that the perpetrator uses credit cards to defraud public and private property by fabricating facts or concealing the truth.
3. The subject of this crime is a general subject, and a natural person can be the subject of this crime.
4. The subjective aspect of this crime is intentional, and it is direct intentional. The perpetrator must also have the subjective purpose of illegally occupying public or private property. Indirect intentional and negligent crimes cannot constitute this crime. It should be pointed out here that in all kinds of behaviors of credit card fraud, the perpetrators have different criminal intentions because of their different behaviors. For example, if a fraudulent crime is committed by using a forged credit card or an invalid credit card, the perpetrator must subjectively know that it is a forged or invalid credit card, otherwise, it cannot constitute this crime. In the case of credit card overdraft, the distinction between goodwill overdraft and malicious overdraft should also be analyzed from the intentional content of the actor. If the actor intentionally occupies other people's property, it is malicious overdraft, and vice versa.
[ Edit this paragraph] The specific behaviors of credit card fraud
are as follows:
(1) Using forged credit cards. The so-called forged credit card refers to the credit card made by imitating the texture, pattern, block, pattern and magnetic stripe password of the credit card. The so-called use refers to the act of using forged credit cards to defraud other people's property for the purpose of illegally possessing other people's property. Including buying goods with forged credit cards, withdrawing cash, and accepting various services with forged credit cards.
(2) use an invalid credit card. Invalid credit cards refer to expired credit cards, invalid credit cards, credit cards declared invalid according to law and relevant regulations, credit cards that the cardholder stops using during the validity period of the credit card and returns them to the issuing bank, and credit cards that are invalid due to loss reporting. In addition, using invalid credit cards also includes using altered cards. The so-called altered card refers to an invalid credit card whose card number has been altered. These credit cards themselves are listed on the stop payment list because of loss reporting or cancellation, but one number on the card is flattened and then another new number is pressed to escape the blacklist search. Therefore, the altered card is also a kind of fake card.
(3) using someone else's credit card. Fraudulent use refers to the behavior that a non-cardholder uses the cardholder's credit card in the cardholder's name to defraud property. According to China's regulations on credit cards, credit cards are limited to legitimate cardholders and cannot be lent or transferred, which is also a principle generally followed by all countries. However, if the credit card and the ID card are put together and lost at the same time, it may create opportunities for the picker or the thief to use it fraudulently. After obtaining someone else's credit card, these pickers or thieves may take advantage of the time difference before the cardholder discovers the loss, or take advantage of the stop payment management to impersonate the identity of the card owner and imitate the signature of the card owner, and go to a credit card merchant or bank to shop for money or enjoy services. These are several common cases of fraudulent use of someone else's credit card.
(4) using a credit card for malicious overdraft. Overdraft refers to the behavior of allowing customers to withdraw money beyond the amount of funds in their accounts with the approval of the bank when there is no funds or insufficient funds in the accounts. Overdraft is essentially a bank lending money to customers. The so-called malicious overdraft, according to the provisions of the second paragraph of Article 196 of the Criminal Law, refers to the behavior that the cardholder of a credit card 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. The essential difference between goodwill overdraft and malicious overdraft lies in the subjective difference of the actors. Both of them have caused overdraft objectively, but the doer of goodwill overdraft subjectively has the intention of using it first and then paying it back, and then returns the overdraft and interest, while the doer of malicious overdraft overdraws in order to take the overdraft for himself, and does not want to repay it at all or is unable to repay it, and absconds from the debt in behavior.
according to the provisions of the criminal law, the actor must have a large amount of elements in addition to one of the above four acts. If the amount is not large, even if the above acts are committed, they are illegal and do not constitute a crime. As for what is a "large amount", there is no clear judicial interpretation at present. However, according to the Supreme People's Court's Interpretation of Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases in 1996, a large amount of personal fraud refers to more than 5, yuan. The starting point of the large amount of credit card fraud can refer to this regulation and it is appropriate to use 5 yuan.
[ Edit this paragraph] The basic characteristics of the crime of credit card fraud
The crime of credit card fraud has the following characteristics in its constitution:
(1) The subject of the crime.
according to the criminal law, the subject of this crime is a general subject and can only be composed of natural persons. There are the following problems in the subject of the crime:
1. Can the unit become the subject of the crime? There are differences in this academic field. The negative theory holds that there is a limit on the use of credit cards, and the unit does not have to take this risk to defraud such a small amount of property. The affirmation theory holds that unit cardholders can commit credit card fraud such as malicious overdraft under the will of the unit, and in practice, there have been cases in which the amount of malicious overdraft by the unit is huge or even extremely large. We believe that the unit can and should be the subject of this crime. Because:
(1) According to the issuing object, credit cards are divided into corporate cards and personal cards. Since companies can be legal cardholders and users, they can of course carry out fraudulent activities such as malicious overdraft. According to the provisions of the Measures for the Administration of Bank Card Business, the allowable overdraft amount of the unit (whether it is a single overdraft amount or a monthly overdraft amount) is larger than that of the individual. If the unit carries out malicious overdraft for the purpose of illegal possession, the amount is also very amazing, but the punishment for the unit lacks legal basis, which is obviously inappropriate.
(2) according to article 177 of the criminal law, a unit can be the subject of the crime of forging or altering financial tickets, and it is entirely possible for a unit to forge a credit card for the purpose of committing credit card fraud. If it is not stipulated that a unit should be the subject of the crime of credit card fraud, then criminal responsibility can only be pursued for the act of means, but not for the act of purpose, which does not conform to the constitution principle of implicated offense.
(3) Criminal legislation should be coordinated. The crime of letter of credit fraud with similar nature can be constituted by units, while the crime of credit card fraud can only be constituted by natural persons, which is obviously uncoordinated in legislation.
for this reason, we suggest that when the criminal law is revised, it should be stipulated that the crime can be constituted by both a unit and a natural person. However, before the amendment, the criminal responsibility of the person directly responsible can only be investigated according to the principle of legally prescribed punishment for a crime.
2. Are the criminal subjects who commit fraud by using invalid credit cards or malicious overdrafts limited to legitimate cardholders?
some people think that the subject of using an invalid credit card can be either the cardholder or someone other than the cardholder. But some people think that it can only be composed of cardholders. There are many views on the subject of malicious overdraft, which can be summed up as two kinds: affirmation and negation. In this regard, our opinion is that the subject of these two acts can only be the cardholder himself, and no one other than the cardholder can become the subject of crime except the accomplice.
For an invalid credit card, no matter what the reason, if others (relative to the cardholder) can become the subject of behavior and be convicted and punished when they really don't know that it is an invalid credit card, it may violate the criminal law principle of consistency between subjective and objective. When the perpetrator uses an invalid credit card, whether he knows whether the credit card is invalid or not, he needs to use someone else's name to commit fraud. Therefore, using an invalid credit card for others can be convicted of "fraudulently using another person's credit card".
malicious overdraft is relative to goodwill overdraft. Goodwill 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, and the nature of behavior has changed from breach of contract in private law to criminal behavior in public law. The two have the same subject. Others hold credit cards to spend or withdraw cash for illegal possession of public or private property, which is not overdraft, but direct fraud.
does the subject of malicious overdraft include "fraudulent credit card holders"? Some people think that it is necessary to analyze the "fraudulent credit card holders" in detail to draw a conclusion. If the credit card fraud can be divided into goodwill fraud and malicious fraud, the difference between the two lies in whether there is the purpose of illegal possession of public and private property when collecting credit cards. Those who cheat only because of the imperfect procedures can be called "bona fide swindlers" if the actor uses the credit card properly in accordance with the credit card management measures and articles of association after receiving it, and "malicious swindlers" if they cheat in order to implement fraud activities. "Malicious deception" for the purpose of committing a crime is certainly not an overdraft problem, so it cannot be the subject of the crime. If the "bona fide swindler" acts in accordance with the regulations on credit card business management, it has no evaluation significance in criminal law; Once it carries out malicious overdraft, it should be presumed that it has the purpose of illegal possession subjectively. At this time, how can we define whether it has criminal intention when receiving credit cards? Therefore, it is of no practical significance to divide the swindler into goodwill or malice from the perspective of the subject of crime. For this reason, we believe that the swindler cannot be the subject of malicious overdraft.
(2) the subjective elements of a crime. The actor is intentional subjectively and has the purpose of illegal possession.
it should be pointed out that after the revision of the criminal law, the purpose of illegal possession is not clearly stipulated in the crime, but it is stipulated in other types of fraud (such as fund-raising fraud and contract fraud). This legislative treatment has caused differences to some extent. Some people think that we should strictly follow the requirements of a legally prescribed punishment for a specified crime. If the criminal law clearly stipulates the purpose, it is an essential element; otherwise, it is not.
We believe that the purpose of illegal possession is an essential element of any form of fraud. Fraud is a kind of greedy crime, and the act itself implies the purpose of illegal possession, whether it is expressly stipulated or not, it is the proper meaning in the title. As for the provisions of the criminal law, there should be no disagreement. Anyone who clearly stipulates the purpose of illegal possession has corresponding legal acts. For example, the crime of fund-raising fraud corresponds to legal fund-raising behavior, and the crime of contract fraud corresponds to normal contract disputes, including malicious overdraft corresponding to goodwill overdraft in this crime. The criminal law is just to correctly distinguish criminal acts from legal acts, so it is handled in legislative technology.
(3) Elements of criminal object. The object of this crime is a complex object, that is, the management order of credit cards and the ownership of public and private property.
(4) objective elements of crime. The objective aspects of this crime are embodied in four forms:
1. Using forged credit cards.
using forged credit cards is an important manifestation of the crime of credit card fraud. There are two main behaviors of forging credit cards. One is to completely imitate the texture, pattern, plate, pattern and magnetic stripe password of real credit cards and illegally manufacture credit cards. The second is to forge on the basis of real credit cards, such as inputting real information of other users on blank credit cards for copying, or inputting false information on blank credit cards. In addition, there are some behaviors that are also forged credit cards, such as altering or altering the original credit cards. The perpetrator must use a forged credit card to constitute this crime. The so-called "use" refers to the use of the legal functions of credit cards for payment, consumption, settlement and other acts. The use of a forged credit card can be used by the actor himself after forging it, or it can be used knowing that it is a forged credit card by others. If the actor sells the forged credit card or simply forges the credit card without using it, it will be treated as the crime of forging or altering financial tickets.
There is a debate on the qualitative behavior of forging credit cards and using them again. One view is that the crime of forging financial tickets and the crime of credit card fraud should be punished together; Another view is that a felony should be punished according to the principle of implicated offense. Among them, the theory of implicated offender is divided on what is a felony: the first view is that the legal punishment of the two is the same, and it is appropriate to punish the resulting act (credit card fraud). The second view is that it should be dealt with as the crime of forging financial tickets. Because the crime of forging financial tickets is a behavioral crime, while the crime of credit card fraud is a consequential crime; The former has no limit, while the latter has a limit. Although the legal punishment is the same, it is obvious that the crime of forging financial tickets is more severe for the actor, so the crime of forging financial vouchers should be convicted; There is also a view that if the perpetrator uses it after forgery, if the amount is large, he will be convicted of credit card fraud, and if the amount is not up to a large standard, he will be convicted of forging financial tickets.
In this regard, our view is that if the perpetrator uses his forged credit card and sells or gives other forged credit cards to others for use, he should be punished for several crimes; If the perpetrator forges the credit card simply for his own use, the use of the credit card will constitute an implicated offense only if it reaches a large amount; As for what is a felony in the case of implicated offense, it should be based on the specific social harm of the act, the applicable kind of punishment and the term of imprisonment, rather than the severity of the statutory punishment; If the degree of the two is equal, it reflects the characteristics of harmful behavior as a whole, and is convicted and punished with the result behavior, that is, credit card fraud.
2. Use an invalid credit card
An invalid credit card refers to a credit card that has lost its effectiveness due to legal reasons. According to the articles of association of credit cards, there are generally the following reasons that can lead to the invalidation of credit cards: (1) Credit cards automatically become invalid after the expiration date; (2) The cardholder ceases to use it and returns it to the original issuing bank within the validity period, which is invalid; (3) Failure due to loss reporting of credit card; Whether the cardholder or the non-cardholder knowingly uses the above-mentioned invalid credit card, it shall be punished as this crime.
is it an invalid credit card to use an altered card? According to the relevant regulations, the altered card is of course invalid, but it is a forgery to alter the relevant information on the invalid real credit card, which is the reason why the credit card is absolutely invalid. The invalid credit card is a real credit card, which is invalid for legal reasons, and