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Credit card arrears-repayment?
First, the definition of credit card fraud
There are different views on the expression of the concept of credit card fraud. On the whole, there are mainly the following viewpoints: (1) Credit card fraud refers to the act of committing credit card fraud in one of the legal circumstances, with a large amount. (1) (2) The crime of credit card fraud refers to the use of credit cards to defraud a large amount of property for the purpose of illegal possession. (2) (3) The crime of credit card fraud refers to the act of using forged or invalid credit cards for the purpose of illegal possession, or fraudulently using other people's credit cards, or maliciously overdrawing credit cards to defraud a large amount of public and private property. (3) (4) The crime of credit card fraud refers to the act of using forged or invalid credit cards, fraudulently using other people's credit cards or maliciously overdrawing other people's property for the purpose of illegal possession. [④]
The author believes that it is the basic requirement to accurately define the concept of credit card fraud and fully reveal its essential characteristics, in line with the provisions of the criminal law. From this point of view, among the above four representative expressions, except the fourth one is more scientific, the other three expressions are debatable. First of all, the first two expressions have the defect of circular definition. Using "committing credit card fraud" or "using credit card fraud" to explain the crime of credit card fraud is obviously synonymous, which violates the logical rules of definition and cannot make people understand the exact connotation of this crime at all. Secondly, the deficiency of the first expression is that the subjective characteristics of the crime of credit card fraud are not clear. Article 196 of the new criminal law clearly stipulates "malicious overdraft for the purpose of illegal possession", but it has no subjective characteristics for the other three credit card fraud methods. Nevertheless, the mainstream view in criminal law theory still believes that whether to take illegal possession as the purpose is the key to distinguish the crime of credit card fraud from non-crime. If you borrow someone else's credit card for shopping, it is also an act of fraudulent use of a credit card, but the borrower has no subjective purpose of illegally possessing the cardholder's property, so his fraudulent use of another person's credit card cannot constitute a crime. Judging from the requirement that the expression concept should fully reveal the essential characteristics of things, the subjective characteristics of "for the purpose of illegal possession" should be clearly reflected in the concept of credit card fraud. Third, the first three expressions omit the feature of "violation of credit card management regulations" as the premise of credit card fraud. It should be noted that the crime of credit card fraud is a statutory crime. The so-called legally prescribed punishment for a crime refers to a crime established on the premise of violating specific laws and regulations. In the expression of the concept of credit card fraud, there is no mention of the characteristics as the premise of the crime, which is obviously contrary to the nature of the crime of legally prescribed punishment. Finally, the fourth expression avoids the above defects of the first three expressions, reveals the basic characteristics of the crime of credit card fraud more comprehensively, and is consistent with the provisions of the new criminal law on this crime, so it is desirable.
Second, the object and object of credit card fraud
The object of crime
There are several different understandings about the criminal object of this crime: (1) The object of this crime is the ownership of public and private property. ⑤ (2) The object of this crime is the national credit card management system. [6] (3) The object of this crime is the national financial management system. [7] (4) The object of this crime is a complex object, including both the national management system of credit cards and the ownership of public and private property. [8] (5) The object of this crime is a complex object, which violates the state's management order of financial activities and the ownership of public and private property. [9] (6) The object of this crime is complex, that is, the ownership of public and private property, the order (system) of bank financing, and the order (system) of merchant operation. [⑩]
The author believes that among the above six viewpoints, except the fourth viewpoint, all other viewpoints are obviously inappropriate.
First of all, the first and second views obviously do not reveal the full social harm of the crime of credit card fraud, which is one-sided. On the one hand, the crime of credit card fraud directly infringes on the national credit card management system, which is the essence of it as a financial crime and the main manifestation of its social harm. [1 1] On the other hand, using credit cards for fraud also violates the ownership of public and private property. The manifestations of the crime of credit card fraud are different, and the nature and right subject of the infringed public and private property ownership are also different. If the actor uses a forged credit card to withdraw cash or uses a credit card to maliciously overdraw, it mainly infringes on the property ownership of financial institutions; If a forged credit card is used to settle the account, the direct economic loss will be borne by the special merchant, which will infringe on the property ownership of the special merchant. If someone uses someone else's credit card fraudulently, it is the cardholder who suffers economic losses, that is, the property ownership is violated. No matter which way fraud is taken, it violates the ownership of public and private property protected by the state. [12] In addition, according to this principle, the division of similar criminal objects is an important basis for establishing a specific system of criminal law. If the first viewpoint can be established, then this crime should not be established in the chapter of the crime of destroying the socialist market economic order, but should be classified as the crime of infringing property, which shows that the first viewpoint is also obviously contrary to the spirit of criminal legislation. It should also be pointed out that the first view undoubtedly obliterates the difference between credit card fraud as an economic fraud crime and ordinary fraud crime at the criminal object level.
Secondly, the third, fifth and sixth views hold that the crime of credit card fraud violates the financial management order (system) and is too broad, which does not fully reveal the essential characteristics of the crime. The content of national financial management order (system) is very rich, including not only credit card management system, but also currency, foreign exchange, securities, loans, insurance, letters of credit and other management systems. The direct object of the crime of credit card fraud only includes the credit card management system as one of the financial management systems, and does not affect the management of other financial systems, so other financial management systems cannot be the direct object of this crime; At the same time, this statement does not reflect the essence of this crime, nor does it reflect the difference between this crime and other types of financial crimes in the direct object, so its unique function of distinguishing this crime from that crime no longer exists.
Thirdly, the sixth view that the object of credit card fraud also includes business management order (system) is also untenable. Because the business management order (system) is not necessarily violated by this crime. For example, it is hard to say how the interests of merchants will be affected by using someone else's credit card to withdraw cash. Moreover, more importantly, the business management form (system) of merchants can be completely incorporated into the national credit card management system, and no separate evaluation is needed.
Finally, the fourth view has a broad and appropriate understanding of the object of credit card fraud, which is in line with the actual situation of the object of this crime. However, it should be further clarified that the national credit card management system is the main object of this crime, so as to show that legislators have stipulated this crime in the crime of undermining the socialist market economic order, and its purpose is to emphasize the legislative idea of protecting the credit card management system.
(2) the object of crime
The theoretical understanding of the criminal object of this crime is also quite inconsistent. Generally speaking, there are two views: one is that the object of this crime is the non-materialized bank credit at the essential level; On the non-essential level, it is the cash currency, commodity currency, commodity service and credit card itself in the form of social commodities. [13] Another view is that the object of this crime is a credit card. [ 14]
The author believes that neither of the above two viewpoints correctly defines the criminal object of this crime. First of all, the first view holds that the criminal object of this crime includes non-materialized bank credit, which obviously confuses the content of the object of this crime with the object of this crime. In fact, this crime infringes on the credit card management system and the bank credit as the content of the credit card management system. According to the understanding of the first view, the crime of credit card fraud, which takes the infringement of bank credit as the criminal object, can only be the unique financial business management order of banks. [15] The problem is that the relationship between criminal object and criminal object is essence and phenomenon, criminal object is the external expression of criminal object, and criminal object is the internal essence of criminal object. Bank credit here is not an element of the phenomenon itself, but an integral part of social relations. Specifically, bank credit itself is the intrinsic element of the unique financial business management order of banks, but it is not the performance of bank credit, but reflects the financial business management order. Secondly, both views hold that credit card is the object of this crime, which is also untenable. Although the credit card itself has a physical form, that is, the plastic card, as a voucher for commodity trading in the circulation field, embodies a certain function of money, but this function of money can only be brought into play through the actual use of credit cards. Therefore, the ownership of public and private property can never be infringed by simply holding a credit card, but only by using a credit card to defraud public and private property can the ownership of public and private property be infringed. In this case, credit card is only a means of fraud, not a specific object of criminal acts. Accordingly, in the case of using credit card to commit fraud, it is not the credit card itself that shows and reflects the ownership of public and private property, but the public and private property obtained by using credit card to commit fraud. Therefore, the object of the crime of credit card fraud should be public and private property.
Third, the objective aspects of credit card fraud.
(A) the objective behavior of this crime
1. Use a forged credit card. Theoretically, some people interpret "using forged credit cards" stipulated in Article 196 of the new Criminal Law as an act of deliberately using forged credit cards to defraud others of their property. [16] The author believes that there are two defects in this explanation: First, when discussing the objective behavior of this crime, it adds the subjective aspect of this crime. Obviously, "knowing" is the subjective content of this crime. If it is included in the objective content of this crime, there are disadvantages of inconsistency between objective and subjective. Second, there is a problem of circular explanation, which can't make people clearly grasp the exact meaning of "using forged credit cards".
The key to correctly explain "using forged credit cards" is to clarify the meanings of "using" and "forging credit cards". "Use" here, some people understand that it refers to the act of exercising or using credit cards according to their own needs, including shopping with credit cards and receiving paid services, [17] which is one-sided. In fact, anyone who uses a forged credit card as a real and effective credit card according to its usual function should belong to "use". Judging from the credit cards issued by various countries at present, credit cards have the following basic functions: transfer settlement function, savings function, exchange function, consumer credit function and automatic deposit and withdrawal function. [18] The above understanding of use only covers the transfer and settlement function of credit cards. The "forged credit card" here is interpreted as a credit card illegally manufactured by various methods, [19] which is not an ordinary credit card. Because I'm afraid this explanation can't rule out "altering credit cards". The so-called "altered credit card" refers to a credit card illegally manufactured by a natural person or unit that has no right to change the contents of the credit card, and changes the card number, expiration date and other contents of a real and valid credit card by means of alteration or hollowing out. "Forged credit card" refers to a fake credit card made by a natural person or unit by various illegal means without the approval or authorization of the national financial management institution, imitating a real and effective credit card. Specifically, there are two kinds of forged credit cards: one is illegally manufactured by imitating the texture, pattern, block, pattern and magnetic stripe password of credit cards; The other is a credit card copied on the basis of a real card, that is, a credit card processed on a legally manufactured blank card that has not been issued to users by banks or credit card institutions, plus the user's account number and name, and certain password information is input on the magnetic stripe to make it seem to have been issued to users. [20] The new criminal law does not stipulate the act of altering credit cards and using altered credit cards as crimes. According to the principle of a legally prescribed punishment for a specified crime, even if the social harm of these two acts is serious, they cannot be interpreted as including the acts of forging credit cards and using forged credit cards, and then be punished as crimes.
2. Use an invalid credit card. The meanings of "using" and "using forged credit cards" here are basically the same. The "invalid credit card" here is generally considered to include three situations in criminal law theory: the credit card will automatically expire after the effective use period; The cardholder stops using the credit card within the validity period, returns the credit card to the card issuer and goes through the formalities of returning the card; The credit card is invalid due to loss reporting. [2 1] However, some people think that altered cards should also be regarded as "invalid credit cards". The so-called "altered card" refers to an invalid credit card whose card number has been altered. These credit cards themselves are listed on the stop payment list because of loss reporting or cancellation, but a certain number on the card is flattened and then a new number is pressed to avoid blacklist retrieval. Therefore, the altered card is essentially a forged credit card. The difference is that the altered card is a fake card made by the original legal cardholder or the person who illegally holds the credit card by changing the card number with a simple instrument. The reason for including "using forged credit cards" is that it is often difficult to achieve criminal purposes simply by using invalid credit cards. Actors often need some changes and handling actions to make invalid credit cards work without being seen through. This alteration can be regarded as an integral part of "using invalid credit cards", and most of the forged credit cards are manifested as "recreating real cards" specially made by criminals or criminal groups. [22] The author believes that "invalid credit card" refers to a credit card that was originally true and effective, but lost its effectiveness for some legal reason. Compared with forged credit cards, invalid credit cards have a process from valid to invalid, and the former is invalid from the beginning. Since the credit card before being altered mentioned in the above viewpoint has been included in the stop payment list due to loss reporting or cancellation, it means that it has become invalid, and the subsequent act of altering and handling the invalid credit card is pure forgery. Therefore, the altered card can be identified as a forged credit card, and it is not necessary to identify it as an invalid credit card. In addition, some commentators suggested that the act of altering a credit card is an act of alteration, and its invalidity is not a legal reason. Deception with this card is not necessarily achieved by means of "time difference". [23] This view notes the difference between altered cards and invalid credit cards, which is worthy of recognition, but it is inappropriate to characterize altered behavior as altered behavior. As mentioned above, the alteration behavior is based on a real and valid credit card, while the alteration behavior here is based on an invalid credit card.
3. Fraudulent use of other people's credit cards. This refers to the act of fraudulent use of credit cards by counterfeit legal cardholders. Whether "other people's credit card" should be effective is different in theory. One view is that it must be effective. Using another person's invalid credit card in another person's name is "using an invalid credit card" from the overall nature of the behavior, and it is no longer "using another person's credit card". Generally, fraudulent use of another person's credit card occurs before the cardholder discovers the loss of the credit card, or uses the time difference of stop payment management to forge another person's ID card and imitate the cardholder's signature, including the actor obtaining another person's credit card and ID card by deception for cash withdrawal or consumption. [24] Another view is that fraudulent credit cards may also be invalid credit cards [25]. The author thinks that although the third item of Article 196 of the Criminal Law does not specify the attribute of "other people's credit card", from the meaning embodied by the word "fraudulent use", it should be considered that "other people's credit card" should have the characteristics of authenticity and validity. Because "fraudulent use" means that a non-cardholder uses a credit card in the name of the cardholder without authorization, but others have the right to use it. And "using other people's invalid credit cards" can be completely included in "using invalid credit cards". However, there are contradictions in the discussion of the former viewpoint. This view affirms that "other people's credit card" should be effective, and at the same time, it is believed that fraudulent use can still occur within the time period when special merchants receive the payment stop bill after others report the loss. The problem is, as mentioned above, after the cardholder reports the loss, the credit card will be invalid. At this point, even if the merchant does not receive the payment stop instruction, it is impossible to use it again.
In judicial practice, the acts of fraudulently using other people's credit cards include the following situations: picking up the lost credit cards of others and fraudulently using them; Take the opportunity to keep credit cards for others and use them fraudulently; Fraudulent use of other people's credit cards; Accept the credit card that the cardholder has not replaced and use it fraudulently. However, some people think that it is also a case of "fraudulent use of other people's credit cards" [26], which obviously cannot be established. On the occasion of stealing credit cards and using them, although there is fraudulent use of credit cards, because credit cards represent symbolic property rights, the actor stealing credit cards does not mean that he directly occupies the property. Only by using them can the symbolic property rights be transformed into real property ownership. Therefore, the fraud behavior of the perpetrator after theft is the process of transforming the uncertain value contained in the credit card itself into specific property, which is the continuation of theft. In this case, the legal evaluation of theft can include the legal evaluation of fraudulent use, which can only be punished as theft and should not be evaluated as an act that constitutes the crime of credit card fraud. Based on this, the third paragraph of article 196 of the new criminal law clearly stipulates that those who steal credit cards and use them shall be convicted and punished in accordance with the provisions of theft.
4. Malicious overdraft. Credit card overdraft refers to the behavior that the cardholder can still use the credit card for consumption under certain conditions within the scope prescribed by law when the funds in his credit card exclusive account are insufficient or no longer available. Credit card overdraft can be divided into goodwill overdraft and malicious overdraft according to its nature. The so-called malicious overdraft, according to the legislative interpretation of the new criminal law, 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. There is no objection to the specific forms of malicious overdraft in theory, that is, legitimate cardholders use valid real cards for malicious overdraft and legitimate cardholders use real cards in partnership with others for malicious overdraft in different places. However, whether the huge overdraft of legal cardholders using invalid real cards in different places can be regarded as "malicious overdraft" is controversial. The author thinks that the reason why legal cardholders use invalid real cards for huge overdrafts in different places is that the credit cards have been included in the stop payment list by the issuing bank and become black cards due to the excessive use of credit cards in this case. At this time, the original legal cardholders' huge overdrafts in different places are nothing more than taking advantage of the weakness that the current communication equipment is still relatively backward and the credit is not well-informed, and implementing them before the stop payment list reaches the special merchants in different places, which is essentially the original legal cardholders' use of invalid credit cards. Therefore, this situation should be regarded as "using invalid credit cards" as stipulated in Item 2 of Article 196 of the new Criminal Law, and "malicious overdraft" as stipulated in Item 4 of this Article, which obviously fails to pay attention to the feature that the credit cards used for malicious overdraft must be genuine and valid.
(2) "Large amount"
"Large amount" is an important objective aspect of the crime of credit card fraud. Only the nature of "large amount" is discussed here.
Regarding the nature of "large amount", it is generally believed in criminal law theory that according to the provisions of Article 196 of the new criminal law, the crime of credit card fraud can only constitute a crime if it reaches a large amount. Therefore, "a large amount" is a necessary condition for the crime of credit card fraud. If the amount is not large, it is a general illegal act and does not constitute a crime. [27] Some scholars, while agreeing with the above-mentioned popular views, on the other hand believe that it is an attempted crime to commit credit card fraud without defrauding property, [28] thus falling into contradiction. The author believes that a correct understanding of the nature of "large amount" in the crime of credit card fraud depends on the understanding of the meaning of "amount" in the crime of amount. It should be considered that the "amount" in the amount crime really embodies the social harm of the amount crime, so it is not unreasonable to take the amount as the most important basis for determining the establishment of the amount crime. However, if it is regarded as one of the criteria for determining whether the amount crime is established, it will be biased to completely ignore the circumstances that reflect the social harm of the behavior outside the amount. Indeed, on the surface, the "large amount" in the amount crime in criminal law is stipulated as one of the necessary elements for the establishment of the amount crime. However, in order to seek its legislative intention, legislators clearly put forward the condition of "large amount" in order to provide a suggestive provision for judicial personnel, so as to focus on the amount when determining the amount crime in practice, thus excluding a large number of acts with small amount or no property from the criminal law to control the crackdown. Accordingly, whether it reaches a certain amount is an important condition to constitute the crime of amount, and the circumstances that reflect the social harm of the behavior beyond the amount are also one of the bases for determining whether the crime of amount is established. Furthermore, the amount in the amount crime can be used as a condition for the completion of the crime; The attempted amount crime refers to the fact that the amount crime has been started, but the minimum amount required by the criminal law to complete the crime has not been met due to reasons other than the will of the actor. Of course, in this case, considering the huge impact of the amount on the social harm of the amount crime, it can generally be considered as a crime based on this and the overall case. However, if the circumstances beyond the amount possessed by the actor show that the social harmfulness of the act has reached the point where criminal responsibility needs to be investigated, it should be punished as a crime. In addition, judging from the provisions of China's judicial interpretation, [29] also contains the spirit of taking the amount of crime as the condition of crime completion.
Fourth, the subject of credit card fraud.
The subject of this crime is the general subject, that is, any natural person who has reached the age of 16 and has criminal responsibility can constitute it. According to article 196 of the new criminal law, the unit cannot be the subject of this crime. However, there are two diametrically opposite opinions on whether the unit should be the subject of this crime: the negative theory and the positive theory. The "negative theory" holds that there is a limit on the use of credit cards, and it is not necessary for ordinary units to take risks to defraud such a small amount of property. The company's credit card must be used under the condition of specifying a specific cardholder, so the credit card fraud committed by the company is actually a fraud committed by a specific cardholder. "Definitely" thinks that the unit can be the subject of this crime. In real life, a large number of companies hold and use credit cards, and the possibility of credit card fraud cannot be ruled out. Moreover, the amount involved in credit card fraud is not all small, otherwise there is no need to stipulate life imprisonment as the statutory maximum punishment for credit card fraud in the criminal law. Although the unit card is used by the designated specific cardholder, its use behavior reflects the collective will of the unit, not the individual will of the cardholder. Of course, the unit and the specific cardholder should punish the credit card fraud committed by the unit cardholder according to the will of the unit. [30] The author believes that the reason for "affirmation" is sufficient. The new criminal law does not stipulate that the unit can become the subject of the crime of credit card fraud, which is a major omission in legislation and should be remedied by amendment. However, before the revision of the criminal law, how to deal with the credit card fraud carried out by the unit is a very realistic problem. In this regard, some people argue that the unit cannot be punished, but only the person in charge and other directly responsible personnel directly responsible for the unit can be punished in accordance with the provisions of the Criminal Law on crimes committed by natural persons. [3 1] It should be said that this view still has some basis. According to article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Crimes, the directly responsible person in charge and other directly responsible personnel of the unit commit fraud in the name of the unit, and the proceeds of fraud are owned by the unit, which constitutes a crime, and the criminal responsibility of the above-mentioned personnel shall be investigated for fraud. This explanation can be said to provide an example of how to deal with the unit that commits the crime when the criminal subject is only a natural person in the criminal law. [32] I believe that unit crime is an act that harms society, which is clearly stipulated in the specific provisions of the criminal law implemented by the unit as the subject of crime. The punishment of the directly responsible person in charge and other directly responsible personnel of the unit reflects the sharing of the overall criminal responsibility of the unit, which does not mean that such personnel are also the subject of the unit crime. This shows that when a unit commits an act, it must investigate the criminal responsibility of the person directly responsible on the premise that the act committed by the unit has constituted a crime. Therefore, if the unit's behavior does not constitute a crime, the person who is directly responsible will be investigated for criminal responsibility, which will lead to the inevitable separation of crime and criminal responsibility, resulting in the unreasonable phenomenon of criminal responsibility in the state of no crime, obliterating the difference between unit behavior and individual behavior, and treating the behavior that was originally dominated by unit will as the behavior dominated by individual will. Some scholars have pointed out that when discussing the theft of a unit, it is indeed suspected that the person in charge directly responsible for the unit and other directly responsible personnel should be investigated for criminal responsibility for theft when the criminal law does not stipulate that the unit can be the subject of theft. [33] It should be said that the concern expressed by this scholar here is also applicable to the situation where the person directly responsible is investigated for criminal responsibility for credit card fraud when the unit handles credit card fraud cases. Therefore, from the requirements of implementing the principle of legally prescribed punishment for a specified crime, before the criminal law is revised accordingly, the directly responsible person in charge and other directly responsible personnel should not be investigated for criminal responsibility for the crime of credit card fraud committed by the unit.
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