The crime of credit card fraud (article 196 of the Criminal Law) refers to the act of using credit cards to defraud a large amount of property for the purpose of illegal possession, in violation of the regulations on credit card management.

First, the standard of filing this crime.

According to relevant laws and regulations, anyone suspected of any of the following circumstances shall be investigated:

1. Use forged credit cards, credit cards fraudulently obtained by fraudulent use of false identification, invalid credit cards, or fraudulent use of other people's credit cards for credit card fraud, with an amount of more than 5,000 yuan.

The term "fraudulently using another person's credit card" as mentioned in Item (3) of Paragraph 1 of Article 196 of the Criminal Law includes the following situations: (1) Picking up another person's credit card and using it; (2) defrauding others of their credit cards and using them; (three) stealing, buying, defrauding or other illegal means to obtain other people's credit card information and use it through the Internet, communication terminals, etc. ; (four) other circumstances of fraudulent use of other people's credit cards.

2. Malicious overdraft of RMB 654.38 million.

If the cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and fails to return it for more than 3 months after being twice collected by the issuing bank, it shall be deemed as "malicious overdraft" as stipulated in Article 196 of the Criminal Law. In any of the following circumstances, it shall be deemed as "for the purpose of illegal possession" as stipulated in the second paragraph of Article 196 of the Criminal Law: (1) knowing that there is no repayment ability and the overdraft amount is too large to be returned; (two) squandering overdraft funds, unable to return; (3) Escaping after overdraft, changing contact information and avoiding bank collection; (4) evading or transferring funds, concealing property or evading repayment; (five) the use of overdraft funds for illegal and criminal activities; (six) other acts of illegal possession of funds and refusal to return them. The amount of malicious overdraft refers to the amount that the cardholder refuses to return or has not returned under the conditions stipulated in the first paragraph. Does not include compound interest, late fees, handling fees and other fees charged by the issuing bank.

Second, the sentencing of this crime.

Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention and fined not less than 20,000 yuan but not more than 200,000 yuan; If the amount is huge or there are other serious circumstances, 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 especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated property.

The so-called serious circumstances refer to the huge amount of fraud or other serious circumstances. The amount here is huge. According to the relevant provisions of judicial interpretation, it refers to fraud of more than 50 thousand yuan. As for other serious circumstances, it mainly refers to the use of advanced technical means after forgery; The ringleader of a criminal group that uses credit cards for fraud; Repeated use of credit cards for fraud, incorrigible; Because of its fraudulent behavior, it has caused huge losses to other people's public and private property; An act that has a bad influence because of its behavior.

The so-called particularly serious circumstances refer to the huge amount of fraud and other particularly serious circumstances. According to the relevant provisions of judicial interpretation, the starting point standard for a particularly huge amount is 500,000 yuan. As for other particularly serious circumstances, it mainly refers to the use of credit cards to commit fraud; Belonging to recidivism, recidivism or recidivism; There are many serious circumstances; Causing particularly serious economic losses or other particularly serious consequences to others due to its fraudulent behavior; Using fraudulent property to commit other serious criminal crimes, which has caused particularly bad effects, and so on.

Malicious overdraft should be investigated for criminal responsibility. However, if all the overdraft interest has been repaid after the public security organ files the case but before the announcement of the judgment of the people's court, the punishment may be given a lighter punishment, and if the circumstances are minor, the punishment may be exempted. If the amount of malicious overdraft is large, and all overdraft interest has been repaid before the public security organ files a case, and the circumstances are obviously minor, criminal responsibility may not be investigated according to law. This is the focus of the lawyer's work in the defense process.

Attachment: Criminal Law and Judicial Interpretation

criminal law

Article 196 Whoever commits credit card fraud under any of the following circumstances, if the amount is relatively large, 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 circumstances, 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 especially huge or there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50,000 yuan but not more than 500,000 yuan or confiscated property:

(1) Using a forged credit card;

(2) Using an invalid credit card;

(3) Fraudulent use of another person's credit card;

(4) malicious overdraft.

The term "malicious overdraft" as mentioned in the preceding paragraph refers to the behavior that the cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and refuses to return it after being urged by the issuing bank.

Whoever steals a credit card and uses it shall be convicted and punished in accordance with the provisions of Article 264 of this Law.

judicial explanation/interpretation

Explanations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Impairment of Credit Card Management (adopted at the1475th meeting of the Supreme People's Court Judicial Committee and the 22nd meeting of the 11th Procuratorial Committee of the Supreme People's Procuratorate on June 5438+00, 2009).

In order to punish criminal activities that hinder the management of credit cards according to law, and safeguard the order of credit card management and the legitimate rights and interests of cardholders, according to the provisions of the Criminal Law of People's Republic of China (PRC), some issues concerning the specific application of law in handling such criminal cases are explained as follows:

Article 1 Anyone who copies another person's credit card, writes the information of another person's credit card into a magnetic stripe medium or chip, or forges more than one credit card 1 piece by other means shall be deemed as "forging a credit card" as stipulated in Item (4) of Paragraph 1 of Article 177 of the Criminal Law, and shall be convicted and punished for the crime of forging a financial ticket.

Forged blank credit cards 10 or more shall be deemed as "forged credit cards" as stipulated in Item (4) of Paragraph 1 of Article 177 of the Criminal Law, and shall be convicted and punished for the crime of forging financial tickets.

Forged credit cards, in any of the following circumstances, shall be deemed as "serious circumstances" as stipulated in Article 177th of the Criminal Law:

(1) Forging more than 5 credit cards but less than 25;

(2) Forged credit card balance and overdraft limit of more than 200,000 yuan but less than 6,543,800 yuan;

(3) Forging more than 50 blank credit cards and less than 250;

(4) Other serious circumstances.

Forged credit cards, under any of the following circumstances, shall be deemed as "especially serious circumstances" as stipulated in Article 177th of the Criminal Law:

(1) Forging more than 25 credit cards;

(2) Forging the credit card balance and overdraft limit, with a single or total amount of more than 6,543,800 yuan;

(3) Forging more than 250 blank credit cards;

(4) Other particularly serious circumstances.

The credit card balance and overdraft limit mentioned in this article refer to the highest deposit balance and overdraft limit recorded by the issuing bank after the credit card is forged.

Article 2 Whoever knowingly holds and transports more than 65,438 but less than 65,438 blank credit cards shall be deemed as "a large quantity" as stipulated in Item (1) of Paragraph 1 of Article 177-1 of the Criminal Law; Illegal possession of more than 5 credit cards and less than 50 credit cards of others shall be deemed as "a large number" as stipulated in Item (2) of the first paragraph of Article 177-1 of the Criminal Law.

In any of the following circumstances, it shall be deemed as "a huge quantity" as stipulated in the first paragraph of Article 177th of the Criminal Law:

(1) Holding and transporting 10 or more credit cards knowing that they are forged;

(2) Holding and transporting more than one credit card 100, knowing that it is a forged blank credit card;

(3) illegally holding more than 50 credit cards of others;

(four) using false identification to defraud more than 0 credit cards 10;

(5) Selling, purchasing or providing others with forged credit cards or obtaining more than one credit card 10 by fraudulent means.

Applying for a credit card against the wishes of others by using my ID card, military officer's card, soldier's card, Hong Kong and Macao residents' travel permit to and from the mainland, mainland travel permit for taiwan residents, passport, etc. Or using forged or altered identification to apply for a credit card, it shall be deemed as "using false identification to defraud a credit card" as stipulated in Item (3) of the first paragraph of Article 177-1 of the Criminal Law.

Article 3 Whoever steals, buys or illegally provides credit card information of others, which is enough to forge credit cards that can be traded, or causes others to conduct transactions in the name of credit card holders, involving more than 5 credit cards 1 card, shall be convicted and punished for the crime of stealing, buying or illegally providing credit card information in accordance with the provisions of the second paragraph of Article 177-1 of the Criminal Law; Involving more than 5 credit cards, it shall be deemed as "a huge amount" as stipulated in the first paragraph of Article 177 of the Criminal Law.

Article 4 Whoever makes or provides false credit certification materials such as property status, income and position for credit card applicants, which involves forging, altering, buying or selling official documents, certificates and seals of state organs, or forging seals of companies, enterprises, institutions and people's organizations, shall be investigated for criminal responsibility, and shall be punished as crimes of forging, altering, buying or selling official documents, certificates and seals of state organs and crimes of forging companies and enterprises respectively in accordance with the provisions of Article 280 of the Criminal Law.

Intermediaries or their personnel who undertake the responsibilities of asset evaluation, capital verification, verification, accounting, auditing and legal services. Those who provide false credit proof materials such as property status, income and position for credit card applicants shall be investigated for criminal responsibility. In accordance with the provisions of Article 229 of the Criminal Law, they shall be convicted and punished for the crime of providing false proof documents and the crime of issuing major false proof documents respectively.

Article 5 Whoever uses a forged credit card, a credit card fraudulently obtained with a false identity certificate, an invalid credit card or another person's credit card for credit card fraud shall be deemed as "a large amount" as stipulated in Article 196 of the Criminal Law. If the amount is more than 50,000 yuan but less than 500,000 yuan, it shall be deemed as "a huge amount" as stipulated in Article 196 of the Criminal Law; If the amount is more than 500,000 yuan, it shall be deemed as "extremely huge amount" as stipulated in Article 196 of the Criminal Law.

"Fraudulent use of another person's credit card" as mentioned in Item (3) of Paragraph 1 of Article 196 of the Criminal Law includes the following situations:

(1) Picking up other people's credit cards and using them;

(2) defrauding others of their credit cards and using them;

(three) stealing, buying, defrauding or other illegal means to obtain other people's credit card information and use it through the Internet, communication terminals, etc. ;

(four) other circumstances of fraudulent use of other people's credit cards.

Article 6 If a cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and fails to return it for more than three months after being repeatedly urged by the issuing bank, it shall be deemed as "malicious overdraft" as stipulated in Article 196 of the Criminal Law.

In any of the following circumstances, it shall be deemed as "for the purpose of illegal possession" as stipulated in the second paragraph of Article 196th of the Criminal Law:

(a) knowing that there is no repayment ability and a large amount of overdraft can not be returned;

(two) squandering overdraft funds, unable to return;

(3) Escaping after overdraft, changing contact information and avoiding bank collection;

(4) evading or transferring funds, concealing property or evading repayment;

(five) the use of overdraft funds for illegal and criminal activities;

(six) other acts of illegal possession of funds and refusal to return them.

Malicious overdraft, the amount of which is more than 6,543.8+0,000 yuan but less than 6,543.8+0,000 yuan, shall be deemed as "a large amount" as stipulated in Article 196 of the Criminal Law; If the amount is more than 654.38+10,000 yuan and less than 1 10,000 yuan, it shall be deemed as "huge amount" as stipulated in Article 196 of the Criminal Law; If the amount is more than 6,543.8+0,000 yuan, it shall be deemed as "extremely huge amount" as stipulated in Article 196 of the Criminal Law.

The amount of malicious overdraft refers to the amount that the cardholder refuses to return or has not returned under the conditions stipulated in the first paragraph. Does not include compound interest, late fees, handling fees and other fees charged by the issuing bank.

Malicious overdraft should be investigated for criminal responsibility. However, if all the overdraft interest has been repaid after the public security organ files the case but before the announcement of the judgment of the people's court, the punishment may be given a lighter punishment, and if the circumstances are minor, the punishment may be exempted. If the amount of malicious overdraft is large, and all overdraft interest has been repaid before the public security organ files a case, and the circumstances are obviously minor, criminal responsibility may not be investigated according to law.

Article 7 Whoever, in violation of state regulations, directly pays cash to credit card holders by means of fictitious transactions, false pricing, cash return, etc. by means of point-of-sale terminal equipment (POS machines). If the circumstances are serious, he shall be convicted and punished for the crime of illegal business operation in accordance with the provisions of Article 225 of the Criminal Law.

If the amount of the act mentioned in the preceding paragraph is more than 6,543.8+0,000 yuan, or the funds of financial institutions are overdue by more than 200,000 yuan, or the economic losses of financial institutions are more than 6,543.8+0,000 yuan, it shall be deemed as "serious circumstances" as stipulated in Article 225 of the Criminal Law; If the amount is more than 5 million yuan, or the funds of financial institutions are not returned more than 6.5438+0 million yuan within the time limit, or the economic losses of financial institutions are more than 500,000 yuan, it shall be deemed as "the circumstances are particularly serious" as stipulated in Article 225 of the Criminal Law.

If the cardholder maliciously overdraws in the above way for the purpose of illegal possession and should be investigated for criminal responsibility, he shall be convicted and punished for credit card fraud in accordance with the provisions of Article 196 of the Criminal Law.

Article 8 Where a unit commits the crimes specified in Articles 1 and 7 of this Interpretation, the standards for conviction and sentencing shall be implemented in accordance with these Articles.