The Supreme Court's judicial interpretation of malicious overdrafts on credit cards: The "Interpretation on Several Issues Concerning the Specific Application of Laws in Criminal Cases Obstructing the Management of Credit Cards" jointly issued by the Supreme People's Court and the Supreme People's Procuratorate constitutes a crime for "malicious overdrafts" on credit cards. The conditions are clearly stipulated, as well as issues related to the determination and punishment of "malicious overdraft", and "illegal possession for the purpose" is defined to distinguish it from the act of overdraft in good faith.

According to the "Interpretation", if the cardholder exceeds the prescribed limit or overdrafts within the prescribed period for the purpose of illegal possession, and fails to return it for more than 3 months after being called upon by the card-issuing bank twice, it shall be deemed as " Malicious overdraft."

Sun Qian, Deputy Prosecutor General of the Supreme People's Procuratorate, said that in accordance with Article 196 of the "Criminal Law of the People's Republic of China", "malicious overdraft" is a criminal act of credit card fraud. This judicial interpretation of the "two highs" clearly stipulates the conditions for "malicious overdraft" to constitute a crime:

1. Two restrictions have been added to "malicious overdraft": First, the two conditions of the card-issuing bank. second collection; second, no return for more than three months. This excludes the behavior of not returning the debt on time because the bank has not received a reminder notice or other reminder documents. If the cardholder has not received the relevant notice or document and has not returned it after a certain period, it does not belong to the category. "Malicious overdraft".

2. The crime of malicious overdraft credit card fraud is an intentional crime, so it subjectively has the purpose of illegal possession, which is a very important component of the behavior. "Illegal possession" is a major distinction between "malicious overdraft" and "bona fide overdraft". Only overdrafts "for the purpose of illegal possession" are considered "malicious overdrafts" and constitute a crime.

This judicial interpretation of "illegal possession for the purpose" lists six situations based on judicial practice in recent years, such as failure to return a large amount of overdrafts knowing that they cannot be repaid; wanton squandering of overdrafts and failure to return them. ; Concealing and changing communication methods after overdraft to evade payment collection by financial institutions, etc. These situations are all manifestations of "illegal possession for the purpose".

3. The amount of "malicious overdraft" is clarified. The amount of "malicious overdraft" refers to the amount that has been refused to be returned and has not yet been returned, excluding late payment fees, compound interest and other fees charged by the card-issuing bank.

4. According to the criminal policy of balancing leniency with severity, those who repay the overdraft interest before the court has made a judgment or the public security organ has not filed a case will be treated lightly or not be held criminally responsible. In this way, those " The fraudulent behavior of "malicious overdraft" also plays the warning and educational role of the law, minimizing the criminal attack area as much as possible.

"Criminal Law":

Article 266: Whoever defrauds public or private property, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall be concurrently or solely punished fine; if the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined; 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 ten years or life imprisonment and shall also be fined or Confiscation of property. If this law provides otherwise, the provisions shall prevail.

Relevant provisions of Article 177: Counterfeit credit cards are classified as "serious":

Forged credit cards with more than 5 but less than 25; counterfeit credit card balances , The overdraft limit individually or in total is more than 200,000 yuan but less than 1 million yuan; forging more than 50 but less than 250 blank credit cards; other serious circumstances.

Article 177 of the Criminal Law stipulates that "the circumstances are particularly serious":

Forging more than 25 credit cards; forging the deposit balance and overdraft limit in the credit card individually or in total More than 1 million yuan; forging more than 250 blank credit cards; and other particularly serious circumstances.

The situation of “pretending to use another person’s credit card” as mentioned in the third paragraph of Article 196 of the Criminal Law

Having found another person’s credit card and using it; and using another person’s credit card Stealing, selling, fragmenting or otherwise illegally obtaining other people's credit card information and using it through the Internet, communication terminals, etc.; other cases of fraudulently using other people's credit cards.