1. What are the standards for filing a case for credit card fraud?

According to relevant legal provisions, those suspected of one of the following circumstances shall be prosecuted:

1. Using forged credit cards, credit cards fraudulently obtained with false identity certificates, invalid credit cards, or fraudulently using other people's credit cards to commit credit card fraud, with the amount exceeding 5,000 yuan.

The term "false use of other people's credit cards" as mentioned in Item (3) of Paragraph 1 of Article 196 of the Criminal Law includes the following situations:

(1) Lost other people's credit cards and Use;

(2) Defraud other people’s credit cards and use them;

(3) Steal, bribe, defraud or obtain other people’s credit card information through other illegal means, and use it through the Internet, Used by communication terminals, etc.;

(4) Other situations of fraudulently using other people’s credit cards.

2. Malicious overdraft of more than 10,000 yuan.

If the cardholder exceeds the prescribed limit or overdrafts within the prescribed period for the purpose of illegal possession, and fails to return the card for more than 3 months after being called upon twice by the issuing bank, it shall be deemed to be a violation of Article 190 of the Criminal Law. "Malicious overdraft" as stipulated in Article 6. Any one of the following circumstances shall be deemed as "illegal possession for the purpose" as stipulated in the second paragraph of Article 196 of the Criminal Law:

(1) Overdrawing a large amount of money knowing that one has no ability to repay, Unable to return;

(2) Spending the overdraft funds wantonly and unable to return;

(3) Escape after overdraft, change contact information, and avoid bank collection;

(4) Escape and transfer funds, conceal property, and evade repayment;

(5) Use overdraft funds to carry out illegal and criminal activities;

(6) Other acts of illegally possessing funds and refusing to return them. The amount of malicious overdraft refers to the amount that the cardholder refuses to return or the amount that has not yet been returned under the conditions specified in the first paragraph. Excludes compound interest, late fees, handling fees and other fees charged by the card-issuing bank.

2. The constituent elements of the crime of credit card fraud are as follows:

1. The objects of this crime are the credit card management system and the ownership of public and private property.

2. The objective aspect of this crime is that the perpetrator fabricates facts or conceals the truth and uses credit cards to defraud public and private property.

3. The subject of this crime is a general subject, and natural persons can become the criminal subject of this crime.

4. The subjective aspect of this crime is intentionality, and it is direct intention. The perpetrator must also have the subjective purpose of illegally possessing public and private property. Indirect intentional and negligent crimes cannot constitute this crime. It should be pointed out here that among the various acts of credit card fraud, the perpetrators have different behaviors and their criminal intentions have their own specific content. For example, if a counterfeit credit card or an invalid credit card is used to commit fraud, the perpetrator must subjectively know that it is a forged or invalid credit card, otherwise, this crime cannot be committed. In the case of credit card overdrafts, the distinction between bona fide overdrafts and malicious overdrafts should also be analyzed from the intentional content of the perpetrator. If the perpetrator has the intention to illegally possess other people's property, it is a malicious overdraft, and vice versa, it is a bona fide overdraft.

3. Criminal Subject

According to the provisions of the Criminal Law, the criminal subject of this crime is a general subject and can only consist of natural persons. Among the criminal subjects, there are the following issues:

Can one become the criminal subject of this crime? There are differences in the academic circles on this. The negative theory is that there is a limit on the amount of credit card use, and the company does not need to take the risk to defraud such a small amount of property. The affirmative theory holds that corporate cardholders can commit malicious overdrafts and other credit card fraud behaviors under the will of the company, and in practice, there have been cases of huge or even extremely huge malicious overdrafts by companies. We believe that units can and should become the subject of this crime. Because:

(1) According to the issuing objects, credit cards are divided into corporate cards and personal cards. Since the company can be the legal cardholder and user, it can certainly carry out fraudulent activities such as malicious overdrafts. According to the provisions of the "Bank Card Business Management Measures", the allowable overdraft amount of an organization (whether it is a single overdraft amount or a monthly overdraft amount) is larger than that of an individual. If an organization maliciously overdrafts for the purpose of illegal possession, the amount is also very shocking. However, there is no legal basis for punishing the unit:

It is obviously inappropriate.

(2) According to the provisions of Article 177 of the Criminal Law, an organization can become the criminal subject of the crime of forging or altering financial instruments. It is entirely possible for an organization to forge credit cards in order to commit credit card fraud. If there is no provision for an organization to become a credit card entity, The criminal subject of the crime of fraud can only be held criminally responsible for the means behavior, but not the purpose behavior, which is inconsistent with the principle of constituting an implicated offender.

(3) Criminal legislation should be coordinated. The crime of letter of credit fraud, which is similar in nature, can be committed by an entity, while the crime of credit card fraud can only be committed by natural persons. This 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 committed by either an entity or a natural person. However, before the revision, the criminal liability of the directly responsible persons (i.e. natural persons) could only be investigated in accordance with the principle of legal punishment.

Legal basis:

Article 54 of the "Regulations of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (2)"

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

(1) Using a forged credit card, or using a credit card fraudulently obtained with false identity certificates, or using an invalid credit card Credit card, or fraudulently using other people’s credit cards to conduct fraudulent activities, with the amount exceeding 5,000 yuan; (2) Malicious overdraft, with the amount exceeding 10,000 yuan.

The "malicious overdraft" stipulated in this article refers to the cardholder's overdraft exceeding the prescribed limit or prescribed period for the purpose of illegal possession, and the card-issuing bank still fails to return it for more than three months after being called upon twice. .

If the overdraft is malicious and the amount is more than 10,000 yuan but less than 100,000 yuan, all the overdraft interest has been repaid before the public security organ files the case. If the circumstances are obviously minor, criminal liability may not be pursued in accordance with the law.