If the court has already issued a verdict, the sentence will not be increased, but it may be increased if the initial verdict is given.

1. Concept

The crime of credit card fraud (Article 196 of the Criminal Law) refers to the use of credit cards to conduct fraudulent activities for the purpose of illegal possession, in violation of credit card management regulations, and to defraud larger amounts of property. Big act.

II. Crime composition

(1) Object requirements

The object infringed by this crime is a complex object, which not only affects the country’s relevant financial instrument management system , specifically speaking, it is an infringement to the credit card management system, and it also causes damage to the public and private property ownership of the bank and the relevant parties of the credit card. The object of the crime was credit cards. The so-called credit card refers to a credit voucher issued by a credit card company (including various card issuers) to the cardholder based on the cardholder's credit for purchasing goods, obtaining services, or withdrawing cash. With this voucher, cardholders can go to designated locations to make purchases and receive services, such as going to shopping malls and stores to purchase items, and going to hotels, restaurants, entertainment venues to enjoy services, etc., without having to pay cash. Afterwards, the payment is made to the card issuer at the designated place of consumption by the credit card, usually called the credit card's authorized merchant, and the card issuer deducts the relevant consumption fees from the money deposited and withdrawn by the cardholder. At the same time, cardholders can also use the card to deposit and withdraw cash at the business outlets designated by the card issuer. The credit card can only be used by the person and cannot be transferred or loaned, let alone pawned or mortgaged.

A credit card, in terms of its content, should generally include: (1) On the front of the card, the pattern designed by the credit card company, the company name and the name of the credit card should be printed, and there should be a special logo for the credit card or anti-counterfeiting Make a secret note; (2) Use a card punching machine to punch the credit card company code, credit card number, cardholder name, expiration date and other contents in raised characters on the card so that the card pressing machine can be used to copy these contents on the signature during use. On the slip; the cardholder's signature has been reserved on the back of the credit card and compared with the font on the signature slip. Generally, there is also a simple statement from the card issuing company such as restricted scope of use, payment currency restrictions, etc.; (3) Set a tape on the back to record the cardholder's relevant information and password for computer terminals or ATMs to identify authenticity.

(2) Objective elements

This crime objectively manifests itself in the use of counterfeit or altered credit cards, or the fraudulent use of other people’s credit cards, or the use of credit cards to maliciously overdraft and defraud public and private property. Large amount of behavior. The specific behaviors are as follows:

1. Using counterfeit credit cards to commit fraud. The so-called use includes various services such as purchasing goods with a credit card, withdrawing cash from banks or ATMs, and accepting credit cards for payment and settlement. The “counterfeit credit card” here refers to the counterfeit credit card stipulated in Article 177 of this Law, that is, a credit card manufactured using various illegal methods. For counterfeit credit cards, some are used by the counterfeiters themselves to carry out fraudulent activities, while others are sold or given to others by the counterfeiters, who then use them to carry out fraudulent activities. Whether it is used by oneself or by others, for the user, it is a situation of "using a counterfeit credit card". The use of counterfeit credit cards, whether to make purchases or receive various paid services, is fraudulent in nature.

2. Use an expired credit card to commit fraud. The so-called expired credit card refers to the use of a credit card that has become invalid due to legal reasons. According to relevant regulations, invalidated credit cards mainly include the following types: (1) Credit cards automatically expire after their effective use period. Depending on the card-issuing bank and the type of credit card, the valid period of use of the credit card also varies, ranging from one year, two years, three years or longer. If you no longer use a credit card after the effective period of use or if you still need to continue using it and go through the card replacement procedures, you should return the expired credit card to the issuing bank or card issuing company. (2) The credit card holder stops using the card partway through the validity period. At this time, although the validity period of the credit card has not expired, it will be invalidated after the card return procedure is completed. (3) The credit card becomes invalid due to reporting the loss of the credit card.

3. Pretending to use other people’s credit cards to commit fraud. The so-called fraudulent use of other people’s credit cards refers to the behavior of a non-cardholder using the cardholder’s credit card in the name of the cardholder to defraud property. For example, using a found credit card; using a credit card kept for the cardholder to make purchases without the cardholder’s consent, etc.

4. Use a credit card for malicious overdraft. A credit card overdraft refers to the situation where the cardholder has insufficient funds or no funds in the credit card account of the issuing bank. With the approval of the bank, the cardholder can still Use a credit card to make purchases. A credit card overdraft is essentially a consumer credit provided by the bank to the cardholder, which allows the cardholder to make purchases first if the funds are insufficient, and then the cardholder will replenish the funds later and pay a certain amount of interest as required. In my country, all card-issuing banks generally stipulate that cardholders are allowed to make short-term good faith overdrafts within a certain limit. In practice, some criminals take advantage of the overdraft feature of bank credit cards for the purpose of illegal possession. They still fail to return the overdraft after being called by the card-issuing bank, or abscond and conceal their identity after a large overdraft to evade repayment responsibilities. This behavior is called This is the so-called fraud crime of using credit cards to maliciously overdraft.

This crime must be the use of credit card fraud, involving a relatively large amount. "A relatively large amount" is the main limit for the crime of credit card fraud. For credit card fraud where the amount is not relatively large, administrative liability and civil liability can be pursued.

(3) Subject requirements

The subject of this crime is a general subject, which can be constituted by any natural person who has reached the age of criminal responsibility and has the ability to bear criminal responsibility. The unit can also become the subject of this crime.

(4) Subjective elements

Subjectively, this crime can only be constituted intentionally, and it must have the purpose of illegally possessing public and private property. If the perpetrator does not intend to commit fraud, even if he obtains property in violation of relevant credit card management regulations, he cannot be punished as a crime. If you use a credit card without knowing it is a forgery or invalid, make an overdraft in good faith, misuse another person's credit card, etc., you will not be punished as a crime.

3. Identification

(1) The boundary between this crime and non-crimes

l. The perpetrator who constitutes the crime of fraudulently using other people’s credit cards to commit fraud must subjectively With the purpose of defrauding others of their property. This crime can only be constituted if there is subjective intention to defraud and objective behavior of fraudulently using other people's credit cards. In practice, some credit card holders lend their credit cards to others, such as relatives and friends. In terms of performance, the user is also fraudulently using other people's credit cards, but the user's behavior of fraudulently using other people's credit cards is subject to the cardholder's consent. Although this behavior violates the regulations on the use of credit cards, the user does not subjectively intend to illegally possess the cardholder's property. Therefore, it does not have the essential characteristics of the crime of credit card fraud. In this case, it can be corrected. Or it shall be handled in accordance with relevant regulations and this article shall not apply and shall be treated as a crime.

2. Distinguish between good-faith overdrafts and malicious overdrafts, and correctly determine the crime of credit card fraud involving the use of credit cards for malicious overdrafts. The essential difference between good-faith overdraft and malicious overdraft lies in the different subjective intentions of the perpetrators. Although both of them caused overdrafts in terms of objective performance, the perpetrator of the former was to use it first and repay later, and the overdraft and interest would be repaid at that time; while the latter was to take the overdraft as his own and did not want to repay it at all or did not have it. The person cannot repay the debt, so his behavior must show that he is doing everything possible to evade reminders from relevant departments, and even absconds to avoid debts. In real life, overdrafts using credit cards often occur, but whether the perpetrator is well-intentioned or malicious requires a comprehensive analysis of his behavior to make a correct judgment. Based on the above situation, if you use the deceptive method of providing false certificates and ID cards to apply for a credit card, and then make a large overdraft, the behavior itself is enough to prove that you have made a malicious overdraft; if you apply for a credit card legally and use your own credit card If a large amount of overdraft is made, the specific performance before and after the overdraft will be analyzed, such as absconding after the overdraft, or refusing to repay despite repeated reminders from the bank, or overdrafting that greatly exceeds one's actual payment ability, which is actually not possible. If it is possible to repay, it can be considered a malicious overdraft.

3. If the following circumstances exist that can prove that the perpetrator did not intend to defraud, he cannot be punished as a crime: (1) He did not know that he was using a forged or invalid credit card. Generally speaking, when using a forged or invalid credit card, it can be inferred that the perpetrator has subjective intention to defraud, because the perpetrator should know whether he or she owns the credit card. However, in practice, there may be situations where others falsely claim that the perpetrator has applied for a credit card and hand over the forged or invalidated credit card to the perpetrator to obtain property, and the perpetrator believes this to be true. Of course, in a situation like this, it cannot be considered that the perpetrator has intentional fraud. (2) Misusing other people’s credit cards or using them fraudulently without the purpose of illegally possessing other people’s property. If the perpetrator owns a credit card but uses the wrong credit card of another person due to negligence or other reasons, the perpetrator does not do it intentionally and of course cannot be punished as a crime. There are also cases where the perpetrator knowingly uses another person's credit card, but the perpetrator is If the card is used for reasons such as joking or to relieve one's own urgent needs, and the cardholder immediately explains and repays it afterwards, since the perpetrator has no purpose of illegally possessing other people's property, he should not be punished as a crime. (3) Good faith overdraft. Good faith overdrafts are allowed and therefore there is no question of criminality. Regarding the issue of distinguishing whether the perpetrator's overdraft is in good faith or malicious, generally speaking, if the perpetrator continuously overdrafts and causes a huge overdraft amount, or fails to repay the overdraft amount on time and continues to overdraft beyond the limit and refuses to repay, it can be considered a malicious overdraft. ; If the actor overdrafts within the limit or overdrafts over the limit but repays it on time, it is a bona fide overdraft.

(2) Anyone who steals a credit card and uses it shall be convicted of the crime of theft

Paragraph 3 of this article stipulates that “Whoever steals a credit card and uses it shall be prosecuted in accordance with Article 264 of this Law stipulates penalties. "This situation refers to the behavior of theft criminals who steal other people's credit cards and use the credit cards to defraud property. The so-called theft and use of credit cards includes criminals stealing credit cards and then using the credit cards themselves, and also includes criminals' associates or friends using the credit cards knowing that the credit cards were stolen. In the latter case, the accomplices or friends of the theft criminal may be treated as the perpetrators of the theft crime. If someone uses a credit card without knowing it is stolen, the user should not be punished as the crime of theft, but should be dealt with according to the specific circumstances and circumstances of the use and in accordance with relevant laws. For example, after a thief steals a credit card, he tells his friend that he found it and used it. In this case, the user should not be treated as the crime of theft, but should be treated as if he had used someone else's credit card. Regulations dealing with fraud.

(3) Qualitative issues of forging credit cards and using forged credit card fraud

How should the fraud behavior of forging credit cards and using forged credit cards be characterized, in the establishment of the crime of credit card fraud In the past, there were three views in the criminal law community in my country: The first view is that credit cards are securities with monetary functions. Therefore, as long as the cardholder has a subjective purpose of making profits and objectively commits forgery, the forgery should be deemed as valuable. Securities crimes. The second view is that forgery is a means and defrauding money is the purpose. Those involved in the crime of counterfeiting securities and fraud should be punished with a felony. The third view is that the crime of fraud should be directly convicted. Because the current securities in our country include checks, stocks, passbooks, money orders, public bonds, and treasury bills (excluding credit cards issued by foreign countries that are circulated in our country), the purpose of the perpetrator is not to make profits, but to illegally occupy public property. , In fact, the act of buying goods with a card is not of a profit-making nature. The object violated by this act is not the normal operation of the national economy, but social property relations. After the crime of credit card fraud is established, the act of forging a credit card constitutes the crime of forging or altering financial instruments in accordance with the provisions of this Law, and the act of using a forged credit card constitutes the crime of credit card fraud. There is an implicated relationship between the two, and the crime of forging and altering financial instruments shall be aggravated by the crime of a felony. punishment. Since the statutory penalties for the two crimes are the same, it is appropriate to punish the resulting behavior of the implicated offender as a crime of credit card fraud.

IV. Punishment

Whoever commits this crime 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 If the circumstances are serious, 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 particularly huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan. A fine of not less than RMB 10,000 but not more than RMB 500,000 or property confiscation may be imposed.

The so-called serious circumstances refer to a huge amount of fraud or other serious circumstances. The amount here is huge. According to relevant judicial interpretations, it refers to those who defraud more than 50,000 yuan. As for other serious circumstances, it mainly refers to those who use advanced technical means to forge and then use them; the ringleader of a criminal group that uses credit cards to commit fraud; those who use credit cards multiple times to commit fraud and refuse to change; those who have caused huge losses to other people's public and private property due to their fraudulent behavior losses; causing adverse effects due to his actions; etc.

The so-called particularly serious circumstances refer to particularly huge amounts of fraud and other particularly serious circumstances. The starting point for a particularly large amount is 200,000 yuan according to relevant judicial interpretations. As for other particularly serious circumstances, it mainly refers to those who use credit cards to commit fraud crimes as a regular business; those who are repeat offenders, habitual offenders or multiple offenders; those who have multiple serious circumstances; those who have caused particularly serious economic losses to others due to their fraudulent activities or other particularly serious consequences; using defrauded property to commit other serious criminal crimes, causing particularly bad effects due to his actions; etc.

5. Legal Provisions and Judicial Interpretations

[Criminal Law Provisions]

Article 195 Under any of the following circumstances, letter of credit fraud is carried out If the amount is huge or there are other serious circumstances, the sentence is to be not less than five years but not more than 10 years of fixed-term imprisonment and a fine of not less than 20,000 yuan but not more than 200,000 yuan; A fine of not more than 100,000 yuan; if the amount is particularly huge or there are other particularly serious circumstances, the sentence shall be not less than 10 years in prison or life imprisonment, and a fine of not less than 50,000 yuan but not more than 500,000 yuan, or property confiscation:

(1) Using forged or altered letters of credit or accompanying documents and documents;

(2) Using invalidated letters of credit;

(3) Obtaining letters of credit by fraud ;

(4) Conducting letter of credit fraud through other methods.

Article 199: Whoever commits the crimes specified in Articles 192, 194, and 195 of this Section, the amount of which is extremely huge and the crime is committed to the state Those who cause particularly heavy losses to the interests of the people shall be sentenced to life imprisonment or death, and their property shall be confiscated.

Article 200 If a unit commits the crimes specified in Articles 192, 194, and 195 of this section, the unit shall be fined and shall be punished. The persons directly in charge and other directly responsible persons shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the amount is huge or there are other serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years; if the amount is particularly huge or there are other particularly serious circumstances, they shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years; , shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment.

Article 287 Whoever uses computers to commit financial fraud, theft, embezzlement, misappropriation of public funds, theft of state secrets or other crimes shall be convicted and punished in accordance with the relevant provisions of this law.

[Judicial Interpretation of the Supreme People's Court's "Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases"

(1996.12.16 Fafa [1996] No. 32)

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6. According to Article 13 of the "Decision", using a letter of credit to conduct fraudulent activities constitutes the crime of letter of credit fraud.

If an individual commits letter of credit fraud with an amount of more than 100,000 yuan, it is classified as a "huge amount"; if an individual commits a letter of credit fraud with an amount of more than 500,000 yuan, it is classified as a "particularly huge amount."

If an entity commits letter of credit fraud with an amount of more than 500,000 yuan, it is classified as "huge amount"; if an entity commits letter of credit fraud with an amount of more than 2.5 million yuan, it is classified as "extremely huge amount."

"Regulations of the Supreme People's Procuratorate and the Ministry of Public Security on the Prosecution Standards for Economic Crime Cases" 2001.5:

46. Credit Card Fraud Cases (Article 196 of the Criminal Law)

Anyone who engages in credit card fraud and is suspected of one of the following circumstances shall be prosecuted:

1. Use a forged credit card, use an invalid credit card, or falsely use another person’s credit card to conduct fraudulent activities, the amount of which is within More than 5,000 yuan;

2. Malicious overdraft, the amount is more than 5,000 yuan.