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On the Criminal Reconciliation System of Credit Card Fraud Crime
Tong Wenxing, People's Court of Hexi District, Tianjin
First, the status quo and problems of criminal justice of credit card fraud
Credit cards can be divided into broad sense and narrow sense. Credit cards in a broad sense include credit cards and debit cards. In a narrow sense, credit cards only refer to credit cards. According to the National People's Congress Standing Committee (NPCSC)'s explanation of the meaning of "credit card" in the Criminal Law of People's Republic of China (PRC) on June 29th, 2004, that is, "credit card" in the Criminal Law refers to an electronic payment card with all or part of the functions of consumer payment, credit loan, transfer settlement, cash deposit and withdrawal ",the credit card referred to in the Criminal Law of our country should be a generalized credit card. As an important tool in the financial market, credit card has brought convenience and security to people and has been rapidly popularized in today's society. However, while being favored by the public, it also has some problems. According to the data of the central bank, by the end of the first quarter of this year, China had issued 654.38 billion+500 million credit cards. In the first quarter of this year, the total outstanding credit of credit cards overdue for half a year reached 4.97 billion yuan, up 133 1% year-on-year, accounting for 3% of the total credit payable at the end of the period. [ 1]
The crime of credit card fraud refers to the credit card fraud that defrauds a large amount of public and private property for the purpose of illegal possession. According to Article 196 of the Criminal Law, there are several types of crimes: using forged credit cards or using false identification to defraud credit cards, using invalid credit cards, fraudulently using other people's credit cards, and maliciously overdrawing. Some scholars believe that the crime of credit card fraud also includes the crime of forging credit cards in Article 177 of the Criminal Law "Crime of Forging or Altering Financial Instruments". [2] In recent years, with the rapid development of credit card business, coupled with the fact that the credit card business itself involves many links, the risks are not easy to detect, the bank's supervision over credit card issuance is weak, and related criminal activities are becoming increasingly serious. According to the relevant data of the public security department, as of June 2007, 65438+ 10, there were 23 cases of credit card fraud in public security organs across the country, an increase of 40.4% over the same period in 2006. The amount involved was 865,438+660,000 yuan, an increase of 24.3% over the same period in 2006. [3]
The main problems existing in the criminal justice of credit card fraud in China are:
1. The problem of damages cannot be properly solved. With the surge of credit card fraud cases, the economic losses caused to financial institutions are increasing, and many cardholders have become victims. However, in judicial practice, after the offender and his relatives are subjected to criminal sanctions, they often have resistance to the civil litigation that requires economic compensation, and their enthusiasm for continuing to compensate the victims is reduced, resulting in low mediation rate in civil litigation and frequent evasion of civil liability, which increases the difficulty in executing civil judgments, and the losses of financial institutions and cardholders are hard to recover, which is not conducive to the smooth settlement of such cases.
2. Insufficient legal provisions. The criminal filing standard of credit card fraud is low. At present, the starting point of this crime is only 5000 yuan. The determination of malicious overdraft cases is not suitable for the consumption situation in economically developed areas in China, which is in contradiction with the concept of encouraging people to use credit cards to spend within the credit limit (up to 50 thousand yuan). In real life, many people forget to pay back on time because they are busy with work and can't receive bills. However, in the legal provisions of the crime of malicious overdraft, the standard of repayment collection by the issuing bank and the boundary between bona fide overdraft and malicious overdraft are not clear, which makes credit card fraud more likely to become a case. Credit card fraud is accompanied by a heavier fine, with a minimum of 20,000 yuan. There are cases where criminals are unable to pay the fine after repaying the arrears and are sentenced to actual punishment.
3. Criminal justice is under increasing pressure. Take Hexi District People's Court in Tianjin as an example. In 2007, 9 cases of credit card fraud were accepted, from 2 1 in 2008 to 25 June in 2009, showing an increasing trend year by year. Criminals use credit cards to defraud money in various ways, and the criminal means are becoming more and more complicated, and gang crimes frequently appear. For example, some criminals use credit cards to buy a large number of goods from supermarkets and electrical appliances cities, and then sell them at low prices to collect a large amount of cash, and then use part of the cash for installment payment or minimum repayment, which can not only occupy a large amount of cash, but also delay the repayment period. Some criminals handle multiple credit cards, use these credit cards to obtain a large amount of cash, and provide "small loans" to others as a means of making money and making a living. These new situations have made it more difficult to investigate and hear cases.
Two. Overview of criminal reconciliation
Criminal reconciliation originated from western victimology; Protecting and restoring the rights of victims; The prison correction policy is on the verge of failure, and judicial resources are seriously wasted; Criminal justice system under the background of the rise of interest recovery theory. As for its theoretical basis, it is generally believed that it is the "theory of restoring justice", "theory of balance" and "narrative theory" mentioned by John R. Gom, an American criminologist, in the article "Criminal Reconciliation Plan: An Investigation of a Practical and Theoretical Framework". [4] Some scholars believe that criminal reconciliation refers to a system in which, after the criminal reaches an understanding with the victim in the form of confession, compensation and apology, the state special organs will no longer pursue the criminal responsibility of the criminal or give him a lighter punishment. [5] Some scholars believe that the so-called criminal reconciliation in China refers to the direct face-to-face discussion between the victim and the offender through the functions and powers of the judicial organs after the crime, so as to promote communication and exchanges between the two sides, so as to determine the solution after the crime, with the aim of restoring the social relations destroyed by the offender, making up for the harm suffered by the victim, and enabling the offender to turn over a new leaf and return to society. [6] Criminal reconciliation is a way to restore the original order and solve criminal disputes through consultation and cooperation, which belongs to litigation. In the process of reaching an agreement, the victim and the offender get higher substantive punishment rights, the state respects the victim's status as the subject of the procedure, and the victim can independently decide matters closely related to his own interests, including resolving criminal disputes through reaching a settlement agreement with the offender to make up for his material and spiritual losses. In this process, protecting the rights and interests of victims takes precedence over realizing the right of the state to investigate and punish criminals.
In recent years, while the legal theorists in our country pay attention to and study this system, local political and legal organs have also made useful attempts according to specific conditions. For example, in July, 2003, the Beijing Municipal Political and Legal Committee issued the Minutes of the Symposium on Handling Minor Injury Cases by Beijing Political and Legal Organs, which standardized the handling of minor injury cases, stipulating that "in minor injury cases caused by civil disputes, if the criminal suspect or the perpetrator commits minor crimes and shows remorse, the reasonable compensation expenses such as medical expenses and lost time have been borne by the victim in whole or in part, and the victim does not require to be investigated for criminal responsibility. If both parties voluntarily negotiate to solve the problem, they can reach a written compensation agreement through consultation. In such cases, the victim may, after submitting a written request to the political and legal organs, make lenient treatment such as withdrawing the case, not prosecuting, being exempted from criminal punishment or being sentenced to non-imprisonment according to regulations. ..... "[7] In May, 2006, Shanghai Public Security Law Department jointly formulated" Several Opinions on Entrusting People's Mediation in Minor Injury Cases ",stipulating that in minor injury cases that meet the conditions of entrusting people's mediation, if both parties are willing to accept people's mediation, the public security law department may entrust a people's mediation committee to mediate. If an agreement is reached through mediation and fulfilled, the public security organ may make a decision not to file a case, dismiss the prosecution, not to prosecute, allow the parties to withdraw the lawsuit and be exempted from criminal punishment. [8] Zhejiang, Anhui, Jiangsu and other places have also carried out similar explorations. However, these attempts at criminal reconciliation basically involve minor injuries that infringe personal rights, while crimes that violate financial management order and public and private property, such as credit card fraud, are rarely involved, because the content of criminal reconciliation is only reflected in the relevant provisions of private prosecution and incidental civil litigation cases in China, and there is no provision for public prosecution cases. The fundamental solution is to clearly establish a criminal reconciliation system from the legal provisions.
Thirdly, it is reasonable to introduce the criminal reconciliation system into the trial of credit card fraud cases
The advantage of criminal reconciliation is that it can better protect the interests of the victims, help the perpetrators to turn over a new leaf, improve the satisfaction of dispute resolution, improve the efficiency of litigation, and make it an effective mechanism to solve criminal disputes. Of course, not all criminal cases can be reconciled, such as endangering national security, corruption and bribery, which are determined by the nature of the case, the object and object of the crime, the public concept and other reasons. The following analyzes the rationality of introducing the crime of credit card fraud into the criminal reconciliation system.
(A) the necessity of introducing a criminal reconciliation system in the process of dealing with credit card fraud.
1, which is conducive to protecting the rights and interests of the injured party and properly solving the problem of damages. In the process of criminal reconciliation, the result of negotiation and dialogue with the injured party will directly affect whether the offender will be subject to criminal sanctions or the severity of sanctions, which will prompt the offender to actively participate in the dialogue, apologize to the other party, sincerely repent, and strive to reach an agreement with the injured party to compensate the other party's losses with full or higher compensation, so as to better calm the injured party's trauma, make up the economic losses of the injured party more quickly and economically than filing a civil lawsuit again, and reduce the litigation burden.
2. It is beneficial for criminals to turn over a new leaf and return to society as soon as possible.
Credit card fraud cases are mostly criminal cases with relatively light sentencing results. Take Hexi District People's Court in Tianjin as an example. In 2008, the court concluded 265,438+0 such cases, involving 265,438+0 defendants, of whom 2 were sentenced to 5-7 years' imprisonment, 4 were sentenced to less than 3 years' imprisonment, 65,438+0 were detained, and 65,438+04 were sentenced to less than 3 years' imprisonment or criminal detention with suspended execution. From June to June, 2009, 19 cases were concluded, involving 2 defendants, including 1 person sentenced to 3-5 years' imprisonment, 5 people sentenced to less than 3 years' imprisonment, 2 people detained, and 13 people sentenced to less than 3 years' imprisonment or suspended criminal detention. Among the above 42 defendants, 39 were sentenced to short-term imprisonment, accounting for 93% of the total number. At present, there are many criticisms of short-term freedom punishment in theoretical circles at home and abroad. It is believed that because of the short time, the purpose of education and correction can not be achieved, but it is easy to "cross-infect" criminals, resulting in "labeling" effect and wasting social resources.
Objectively speaking, these credit card fraud cases, which are less harmful to society, have not caused deep trauma to the victims, especially to banks. Under normal circumstances, the injurer can gain the understanding and tolerance of the other party after compensating the economic losses of the injured party, apologizing actively and sincerely repenting, and the injured party does not have to pursue the criminal responsibility of the injurer. According to the current legal system, once an offender is prosecuted, he will generally face the result of being sentenced to punishment. For the offender, what kind of punishment will bring very serious consequences. It is inevitable to be expelled from public office, military post, terminate one's school status and lose the qualification to engage in certain occupations, which will cast a huge shadow on his future work and life. With more and more credit card cases, there will be more and more such petty criminals. For the society, we should give them more humanistic care. The appearance of too many criminals is not conducive to the harmonious and stable situation.
After the introduction of the criminal reconciliation system, the criminal responsibility of the perpetrators can no longer be investigated, or can only be investigated in a slight way, if the two sides reach a settlement agreement. In this way, a large proportion of the perpetrators of credit card fraud cases will not be labeled as "criminals" forever because of a temporary mistake, so as to have a better future again, which is conducive to turning over a new leaf and will not give up again and endanger society. It can also reduce the number of prisoners served, reduce the social burden, repair the relationship between criminals and the injured party, and restore normal social life.
3. It is conducive to improving judicial efficiency and saving judicial resources.
Litigation efficiency is one of the judicial issues concerned by the current society. As far as criminal justice is concerned, improving litigation efficiency is not only to save judicial costs and alleviate the lack of funds for handling cases, but more importantly, to let criminals get timely punishment and victims get spiritual comfort and material compensation as soon as possible. [9] As mentioned above, credit card fraud cases are mostly criminal cases with less harm, which can basically be solved through the criminal reconciliation system. In this way, the speed of handling cases can be greatly improved, and criminal problems can be dealt with in time; Make up for the losses of the injured party properly and timely; If the criminal pleads guilty, it will be easier to find out the facts of the case, reduce the investigation cost of such cases and ease the pressure of handling cases. In addition, it can also improve the public's satisfaction with dispute resolution, reduce the number of complaints, appeals and petitions, and save the execution procedures of civil litigation and civil compensation, thus alleviating the difficulty in executing civil cases.
4. It is beneficial to implement the criminal policy of combining leniency with severity in credit card fraud cases.
The criminal policy of combining leniency with severity is a basic criminal policy gradually developed and improved in China's long-term judicial practice, which is of great guiding significance to judicial practice. The people's courts should implement this policy from the following four aspects [10]: (1) Strictly crack down on serious criminal offences according to law and safeguard national security and social stability. (2) Strengthening the protection of human rights in the criminal justice field. (3) Wider width will minimize social opposition. (4) Actively participate in the comprehensive management of social security. The connotation of criminal reconciliation system meets the requirements of implementing the policy of combining leniency with severity. In the process of handling credit card fraud cases, the criminal reconciliation system has solved most cases with less social harm, which embodies the spirit of protecting human rights and being lenient, enabling most criminals to turn over a new leaf and return to society, thus resolving contradictions and eliminating opposition, which is conducive to investing more judicial resources in investigating financial fraud cases that seriously undermine the market economic order, thus highlighting key points and treating them differently. However, at present, criminal reconciliation has not yet formed an institutional system, and the criminal policy of combining leniency with severity provides a sufficient criminal policy basis for criminal reconciliation. [ 1 1]
(B) the feasibility of introducing a criminal reconciliation system in the process of handling credit card fraud cases.
Reconciliation plays an important role in the history of ancient litigation culture in China. Although the modern criminal reconciliation theory rose in the west, "the harmonious culture represented by the concepts of' harmony between man and nature' and' harmony is precious' in China's traditional culture is the real cultural basis and theoretical origin of today's criminal reconciliation system". [12] Since ancient times, China has emphasized the harmonious coexistence of various social relations, opposed the settlement of disputes through litigation, advocated solving problems by mediation, and advocated educating people through reason and resolving contradictions. "Taking' human feelings' and their relationship as the theme and foundation, ethics is the most important and the interests are the least; Love is the most important, followed by reason; Education is the mainstay, supplemented by punishment; Strong flexibility and weak formality; This is the' blending of etiquette and law, mutual use of Confucianism and law' in the original Confucianism. [13] This traditional concept of "harmony" and "reason" has influenced the present judicial system in China. The successful application of the civil mediation system proves the vitality of the concept of reconciliation. Therefore, according to the national conditions, the formulation and application of criminal reconciliation system with China characteristics has its growing soil, which can be actively accepted by the people and will achieve good results.
As far as the introduction of criminal reconciliation system into credit card fraud crimes is concerned, most of these crimes are minor criminal cases, with less subjective malice and less social harm, and the losses caused by a single case to the injured party are not serious, so we can take the lead in introducing criminal reconciliation system to deal with such minor criminal cases:
1. From the standpoint of both parties, it is easy for the injurer and the injured party in such cases to reach a settlement.
For the victims who attach importance to compensation and the injurers who have the ability to pay, the benefits obtained from reconciliation are greater than those obtained from formal litigation, which is also an important reason for the strong vitality of reconciliation as a dispute settlement method. [14] Most credit card fraud cases are cases of minor infringement of property rights. The psychological and emotional damage suffered by the injured party is far lower than that of other ordinary crimes. The desire for revenge against the perpetrators is not very strong, and more attention is paid to compensation for property losses. Taking banks as an example, the primary purpose of their survival and development is to enable enterprises to obtain greater economic benefits, so they are most concerned about the recourse of cheated funds and litigation interests, and the criminal punishment requirements for actors rank second. In practice, there are even cases where banks can sue for loan disputes through civil procedures, but because they are unwilling to pay legal fees in advance, they do not need to pay any fees through criminal proceedings, and instead report the case to the public security organs and recover the money through criminal proceedings. For those minor credit card fraud crimes, if the criminal can compensate the bank for the losses in time, the bank will generally not deliberately impose criminal punishment on the criminal. For criminals, because criminal punishment can be exempted or mitigated, they are encouraged to actively participate in dialogue and consultation. Because the amount is not large, the perpetrators and their relatives generally have the financial ability to compensate for the losses. After reaching a settlement through dialogue, both parties can benefit, and the possibility of dialogue and consultation is far greater than other ordinary crimes.
2. Using criminal reconciliation to deal with such cases has little negative impact.
Because this kind of cases mainly infringe on financial management order and public and private property, they rarely involve morality, public order and good customs, and criminal reconciliation can be accepted by the public. Different from crimes such as infringement of citizens' personal rights, there are often contradictions between helping the weak and realizing criminal justice, and judicial organs can preside over reconciliation work under relatively loose conditions. Minor credit card fraud cases involve a small amount of crime, which can be borne by the general perpetrator and his relatives. In the process of reconciliation, due to the disparity in compensation ability, it is rare that the punishment results of different perpetrators are unequal.
Fourthly, the system construction of criminal reconciliation of credit card fraud crime.
Building a harmonious socialist society is the general goal of governing the country, and it is also the policy and theoretical basis for formulating various judicial systems. Some scholars have pointed out that a harmonious society is not a society without contradictions and disputes, let alone a society without crime. Harmonious society means that in a society, contradictions and disputes can be mediated in time and crimes can be effectively controlled. Law is the regulator of various social relations and the resolver of various social contradictions. [15] The correct formulation and application of the criminal reconciliation system will make it a good "regulator and resolver". However, at the present stage in our country, the introduction of this system must consider the influence of traditional concepts, supporting systems, the quality of judicial personnel and people's tolerance. Some scholars pointed out that China should standardize the application of criminal reconciliation, but it should be limited to a certain range, so that criminal reconciliation and litigation adjudication are both dispute settlement methods, which are parallel and complementary in different scopes and tracks. [16] There are many cases of credit card fraud, most of which are less harmful to society, involving public interests, less moral and ethical factors, and the injured party pays more attention to recovering economic losses, which makes this kind of cases encounter less resistance when applying criminal reconciliation, and can become a "test field" for constructing and perfecting China's criminal reconciliation mechanism. The following puts forward some preliminary views on the problems in the construction of criminal reconciliation system for credit card fraud:
(1) Participants in criminal settlement of credit card fraud cases
Participants in criminal reconciliation of credit card fraud cases should include victims, perpetrators and judicial organs. Victims include cardholders and banks. At present, it is doubtful whether legal person victims such as banks can become the subject of criminal reconciliation. In my opinion, there are also problems in the recovery of damages caused by criminal acts by corporate victims, and criminal reconciliation is also conducive to the protection of their rights and interests. As far as minor credit card fraud cases in which the victim is a bank are concerned, as mentioned above, the application of criminal reconciliation can better make up for the losses of the bank, and credit card fraud crimes are mostly cases sentenced to fixed-term imprisonment of less than three years. These cases are less harmful to society and do not involve public order and good customs, so it is easier for both parties to reach a settlement. The increasing number of credit card fraud cases also requires efficient dispute resolution mechanisms such as criminal reconciliation. Therefore, legal person victims such as banks can completely become the subject of criminal reconciliation.
(two) the principles and conditions for the application of criminal reconciliation to credit card fraud.
The law should clearly stipulate the principles and preconditions for applying criminal reconciliation to such cases, so as to prevent arbitrariness and injustice in handling criminal cases.
1. Criminal reconciliation should strictly follow the principle of voluntariness. The injured party and the injuring party must decide to have a dialogue completely out of their own consciousness, so as to prevent the occurrence of public power coercion and direct interest containment.
2. The injurer of the credit card fraud case must plead guilty and sincerely repent. The injuring party should fully realize its own mistakes, sincerely apologize to the injured party, state the criminal process, and assist the judicial organs to find out the facts of the case. "If a criminal commits an injury, but he has no remorse, and he spends money on reconciliation, it shows that this person despises the authority of the law, and his personal danger has not really been reduced or eliminated, which does not meet the conditions for reconciliation." [17] For banks, they can't make up their debts because they are eager to recover the money, regardless of the guilty attitude of the injuring party, and reach a settlement with them. In addition, for the injurer who has settled this kind of case once before, if he commits a crime again, criminal reconciliation can no longer be applied.
3. The contents of the criminal reconciliation agreement reached by both parties shall not violate the law, public order, good customs and public interests.
(three) the legal consequences of the victim and the victim reached a criminal settlement agreement in the case of credit card fraud.
The law should clearly stipulate the legal consequences of criminal reconciliation between the two parties, so that criminal reconciliation can be the basis for exemption, mitigation and lighter punishment, which is a necessary prerequisite for building a criminal reconciliation system for credit card fraud cases. The judicial organ shall recognize the validity of the settlement agreement confirmed as the true intention of both parties, and in the stage of examination and prosecution, it shall stipulate that the procuratorate has the right to make a decision not to prosecute or suspend prosecution according to the situation; At the trial stage, it is stipulated that the court has the right to make decisions on exemption, mitigation and lighter punishment. For the crime of credit card fraud, it should also be pointed out that if the victim repays all the losses after reaching an agreement, and the court makes a decision to lighten or reduce the main penalty, it should generally make a decision to completely waive the fine penalty, which is conducive to improving the enthusiasm of the victim to reach a settlement, and it is the embodiment that the protection of the victim's rights and interests takes precedence over the state's right to prosecute and dispose of the victim. Once the agreement is signed, it shows that the injured party has given up the right to pursue punishment, and the injured party must also fulfill the compensation obligations stipulated in the agreement. Neither side can go back on our word unless the situation changes. Criminal law can also add some non-penalty punishment methods such as community service and public welfare labor, which is conducive to the return of criminals to society. [ 18]
(four) the scope of application of criminal settlement of credit card fraud cases
In China, at the initial stage of the formulation and operation of the criminal reconciliation system, it is not appropriate to stipulate its scope of application too broadly. For credit card fraud cases, the scope of application should be limited to minor cases with little social harm. Credit card fraud cases stipulated in Article 196 of the Criminal Law can be considered as criminal reconciliation, and they can be punished with "fixed-term imprisonment of not more than five years or criminal detention and a fine of not less than 20,000 but not more than 200,000".
(5) The applicable stage of criminal reconciliation of credit card fraud cases.
There are two different views on the applicable stage of criminal reconciliation. One view holds that criminal reconciliation can be carried out in the stages of investigation, prosecution and trial, while the other view holds that criminal reconciliation can only be carried out in the stages of examination, prosecution and trial by procuratorate or court. The author supports the latter view for the following reasons: 1. The primary duty of public security organs is to find out the facts of cases and collect relevant evidence. Although the dispute can be settled by reconciliation between the offender and the victim, the facts of the crime must still be ascertained, which is the basis for reaching criminal reconciliation. If a settlement is reached without collecting enough evidence, the investigation will not be carried out. Once the parties repent afterwards, some important evidence can no longer be collected, and the case will be difficult to handle. 3. The operation of criminal reconciliation mechanism also needs supervision and restriction. In the absence of judicial intervention, it is not in line with the principle of division of responsibilities, mutual cooperation and mutual restriction in criminal proceedings to close the case only in the investigation stage. There is no guarantee that the case handling process will be open and fair. To sum up, in the exploration stage of the formulation and implementation of the criminal reconciliation mechanism, it is not appropriate to apply the system in the investigation stage, and the criminal reconciliation of credit card fraud cases should be carried out in the examination, prosecution and trial stage.
summary
The construction of criminal reconciliation system involves the revision of criminal law, criminal procedure law and other laws, which has a certain impact on the newly established principle of a legally prescribed punishment for a specified crime and the belief in procedural justice in China. There is a process of gradual acceptance between the judiciary and the public, which cannot be achieved overnight. In view of these circumstances, it is safe to introduce trial regulations first, and choose one or several types of cases such as minor credit card fraud to apply the criminal reconciliation system first. One of the advantages of doing this is that there is a buffer period, which can sum up experience and find shortcomings in practice, so as to prepare for the comprehensive construction of the criminal reconciliation system; Second, letting the public see the advantages and effects of this system will help the public gradually accept this new criminal justice concept. Third, in the process of handling such cases, even if there are problems, it will not cause too much social repercussions and will not affect the growth and development of this system. Fourth, it is conducive to solving large-scale growth cases such as credit card fraud crimes and alleviating judicial pressure. After the implementation has achieved certain results, relevant laws and regulations will be further revised, the types and scope of applicable cases will be expanded, and the system will be fully implemented.