The crime of credit card fraud refers to the use of credit cards to conduct fraudulent activities for the purpose of illegal possession and to defraud larger amounts of property.

Elements

The elements are the use of credit cards to conduct fraudulent activities and defraud large amounts of property.

1. Use forged credit cards or credit cards fraudulently obtained with false identity documents to defraud property. Credit cards stipulated in the Criminal Law refer to electronic payment cards issued by commercial banks or other financial institutions that have all or part of the functions of consumer payment, credit loans, transfer settlement, cash deposits and withdrawals, etc. Use means using the counterfeit credit card as a real and valid credit card according to the usual usage of credit cards. The use of counterfeit credit cards is limited to natural persons. Anyone who uses a counterfeit credit card to obtain property at a machine is guilty of the crime of theft. If you use a so-called "altered" credit card (such as a credit card with the information in the magnetic strip changed), you should be deemed to be using a counterfeit credit card. Anyone who uses a forged credit card to privately pledge a guarantee to defraud others of their property is not guilty of credit card fraud, but should be considered a crime of (contract) fraud.

2. Use expired credit cards to defraud property. The subject of using an expired credit card can be the cardholder or another person. The use is limited to natural persons. Anyone who uses a expired credit card to obtain property at a machine is guilty of the crime of theft.

3. Pretend to use other people’s credit cards to defraud property. Fraudulent use of other people's credit cards generally occurs when a non-card holder uses the card holder's credit card in the name of the card holder to defraud property (but there is no need to limit other people's credit cards to other people's real and valid credit cards). The act of using a credit card in your own name does not constitute the crime of credit card fraud. The credit card used fraudulently by the perpetrator may have been found or obtained through other methods (exceptions exist in the case of credit card theft or robbery followed by use). Fraudulent use of other people's credit cards is based on violation of the cardholder's will; using the credit card with the cardholder's consent does not constitute a crime. According to the aforementioned "Interpretation of Credit Card Cases" (see "11" in Section 5 of this chapter), anyone who falls under any of the following circumstances is deemed to have used someone else's credit card fraudulently: finding someone else's credit card and using it; defrauding someone else's credit card and using it; stealing, buying, or Obtaining other people's credit card information by fraud or other illegal means and using it through the Internet, communication terminals, etc.; other cases of fraudulently using other people's credit cards. However, this book believes that the fraudulent use of other people's credit cards is limited to natural persons. Anyone who uses other people's credit cards to withdraw money on a machine is guilty of the crime of theft. Because the word "false use" itself includes the meaning of deception, the fraudulent behavior of fraudulently using other people's credit cards must be an act of deceiving others into misunderstandings about disposing of property. On the other hand, there is no problem of "impersonation" or "fraud" for machines, because there is no problem of whether machines have misunderstandings. As long as the operating procedures are followed and the password entered is correct, anyone can withdraw money from the machine; conversely, even a legal cardholder cannot withdraw money from the machine as long as the operating procedures are not followed and the password entered is incorrect. On April 18, 2008, the Supreme People's Procuratorate issued the "Reply on How to Qualify the Behavior of Picking Up Others' Credit Cards and Using It at an Automatic Teller Machine (ATM)" stating: "The behavior of picking up someone else's credit card and using it at an Automatic Teller Machine (ATM) , which falls within the situation of 'falsely using another person's credit card' as stipulated in Article 196, Paragraph 1, Item (3) of the Criminal Law, and if it constitutes a crime, criminal liability will be pursued for the crime of credit card fraud. "This book believes that this explanation is not valid. It complies with the basic principles of credit card fraud. Because the crime of fraud is based on deceiving a natural person, when using someone else's credit card on a machine, no deception is committed on any natural person. Moreover, this explanation contradicts the relevant explanation of the Supreme People's Procuratorate. The Supreme People's Procuratorate's April 2, 2003 "Reply to the Legal Issues Concerning the Illegal Production, Sale, and Use of IC Phone Cards" clearly stated: "Knowing that IC phone cards are illegally produced, or purchasing and using them, will result in losses in telecommunications rates. If the crime is serious, criminal liability shall be investigated for the crime of theft in accordance with the provisions of Article 264 of the Criminal Law.

The establishment of this crime requires a relatively large amount of fraud. According to the provisions of the "Interpretation of Credit Card Cases", the first three acts take 5,000 yuan as the starting point for the larger amount, and the malicious overdraft takes 10,000 yuan as the starting point for the larger amount. . In the case of malicious overdraft, if the cardholder pays a deposit at the bank, the amount of the malicious overdraft shall be calculated as the amount exceeding the deposit. Those who fail to meet the above standards shall be punished as a crime of fraud or an attempted crime of this crime, depending on the specific circumstances. Form of Liability

In addition to intentionality, the elements of liability also require the purpose of illegal possession. When using a forged or invalid credit card, you must know that it is a forged or invalid credit card; if you think it is someone else's real and valid credit card, but actually use a forged credit card, it is an error within the same constituent elements and does not affect the crime of credit card fraud. of establishment. A bona fide overdraft without the purpose of illegal possession does not constitute the crime of credit card fraud.