1. Credit card fraud (also known as credit card fraud) refers to the act of using credit cards to defraud a large amount of property for the purpose of illegal possession, in violation of credit card management regulations.
2. Credit card fraud
I. Concept
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.
Second, the composition of the crime
(A) the object elements
The object of this crime is a complex object, which not only infringes on the relevant national financial ticket management system, specifically the credit card management system, but also damages the public and private property ownership of banks and credit card related parties. The target of the crime is the credit card. The so-called credit card refers to the credit certificate issued by credit card companies (including various card issuers) to cardholders for purchasing goods, obtaining services or withdrawing cash on the condition of their credit. With this voucher, the cardholder can consume and receive services in designated places, such as shopping in shopping malls and shops, and enjoying services in hotels, restaurants and entertainment places without paying cash. Later, the designated consumption place of the credit card usually asked the credit card merchant to hand over the money to the issuing bank, and then the issuing bank deducted the relevant consumption expenses from the cardholder's deposit and withdrawal. At the same time, cardholders can also deposit and withdraw cash at the business outlets designated by the card issuer. Credit cards can only be used by oneself, and cannot be transferred, lent, pawned or mortgaged.
Credit card, as far as its content is concerned, should generally include: (1) On the front of the card, the design of the credit card company, the company name and the name of the credit card should be printed, and there should be a special credit card logo or anti-counterfeiting secret; (2) Punch the code of the credit card company, credit card number, cardholder's name, expiration date, etc. on the card with raised characters, so that these contents can be copied on the signature book with a card press when using; The cardholder's signature has been reserved on the back of the credit card and compared with the font on the signature sheet. Generally, it is also printed with a simple statement of the card issuing company, such as the scope of restrictions, payment currency, etc. (3) Set a magnetic tape on the back to record the cardholder's relevant information and password for the computer terminal or ATM to identify the authenticity.
(b) objective factors
This crime is objectively manifested as using forged or altered credit cards, or fraudulently using other people's credit cards, or maliciously overdrawing credit cards to defraud a large amount of public and private property. Its specific behavior is as follows:
1, fraudulently using forged credit cards. The so-called use includes various services such as purchasing goods with credit cards, withdrawing cash from banks or ATMs, and accepting credit card payment and settlement. The "forged credit card" here refers to the forged credit card stipulated in Article l77 of this Law, that is, the credit card manufactured by various illegal means. For forged credit cards, some counterfeiters use them for fraudulent activities, and some counterfeiters sell or give them to others for fraudulent activities. For users, whether they use it for themselves or others, it is a case of "using forged credit cards". Using forged credit cards, whether shopping or accepting various paid services, is essentially a fraud.
2. Use an invalid credit card for fraud. The so-called invalid credit card refers to the use of credit cards that have expired for legal reasons. According to the relevant regulations, there are mainly the following types of invalid credit cards: (1) Credit cards automatically expire after their effective use period. According to the types of issuing banks and credit cards, the validity period of credit cards is also different, with a term of one year, two years, three years or longer. For those who do not continue to use the credit card or need to continue to use it after the effective period, the expired credit card should be returned to the issuing bank or company. (2) The credit card holder stops using the card in the middle of the validity period. At this point, although the validity period of the credit card has not yet arrived, it will be invalid after going through the formalities of returning the card. (3) The credit card is invalid due to loss reporting.
3. Fraudulent use of other people's credit cards. The so-called fraudulent use of other people's credit cards refers to the behavior of non-cardholders using cardholders' credit cards to defraud property in the name of cardholders. If you use the credit card you found; Without the consent of the cardholder, use the credit card kept by the cardholder for consumption, etc.
4. The credit card is maliciously overdrawn. Credit card overdraft means that the cardholder can still use the credit card for consumption with the approval of the bank when the funds in the credit card account of the issuing bank are insufficient or no longer available. Credit card overdraft is essentially the consumer credit provided by the bank to the cardholder, that is, when the funds are insufficient, the cardholder is allowed to spend first, and then the cardholder makes up the funds and pays certain interest according to the regulations. In China, the issuing bank generally stipulates that cardholders are allowed to make short-term goodwill overdrafts within a certain limit. In practice, some criminals take advantage of the feature that bank credit cards can be overdrawn, and for the purpose of illegal possession, they still refuse to return the overdraft after being collected by the issuing bank or abscond to hide their identity after a large overdraft, so as to avoid the repayment responsibility. This kind of behavior is called fraud crime of malicious overdraft by credit card.
This crime must be a large amount of credit card fraud. "Large amount" is the main boundary of credit card fraud. For a small amount of credit card fraud, administrative liability and civil liability can be investigated.
(3) Main elements
The subject of this crime is a general subject, which can be composed of any natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility. The unit can also be the subject of this crime.
(4) Subjective factors
Subjectively, this crime can only be intentional, and it must have the purpose of illegally possessing public and private property. If the perpetrator has no intention of fraud, even if he has obtained property in violation of the relevant regulations on credit card management, he cannot be punished as a crime. If you don't know that it is a forged or invalid credit card, you can use it, overdraw in good faith, and use someone else's credit card fraudulently. And can't be punished as a crime.
Third, identify
(A) the boundaries between this crime and non-crime
L, constitute the crime of fraudulent use of other people's credit cards, subjectively must have the purpose of defrauding other people's property. This crime can only be constituted by intentional fraud subjectively and fraudulent use of other people's credit cards objectively. In practice, some credit card holders lend their cards to others, such as their relatives and friends. In the form of expression, users are also using other people's credit cards, but the user's fraudulent use of other people's credit cards is approved by the cardholder. Although this behavior violates the regulations on the use of credit cards, the user does not subjectively take possession of the cardholder's property for the purpose. Therefore, it does not have the essential characteristics of credit card fraud. In this case, it can be corrected or dealt with in accordance with relevant regulations, and this article cannot be applied as a crime.
2. Distinguish between goodwill overdraft and malicious overdraft, and correctly identify the crime of credit card fraud by using credit cards for malicious overdraft. The essential difference between goodwill overdraft and malicious overdraft lies in the subjective and intentional differences of the actors. Although both of them objectively caused overdraft, the actor of the former used it first and then returned it, and then returned the overdraft and interest; The latter takes the overdraft as his own, and he doesn't want to pay it back at all or has no ability to pay it back. Therefore, in his behavior, he must try his best to avoid the dunning of the relevant departments, and even take the method of absconding to avoid debts. In real life, credit card overdrafts often occur, but whether the perpetrator is good or malicious must be comprehensively analyzed to get a correct judgment. In combination with the above situation, if the credit card is handled by fraudulent means of providing false certificates and fake ID cards, and then a large amount of overdraft is made, its behavior itself is enough to prove that it is a malicious overdraft; If you legally apply for a credit card and use your own credit card for a large amount of overdraft, you can analyze the specific performance before and after the overdraft, such as absconding after overdraft, or refusing to repay after repeated reminders from the bank, or overdraft exceeds your actual ability to pay, which can be considered as malicious overdraft.
3. If the following circumstances can prove that the perpetrator did not intentionally defraud, it cannot be punished as a crime: (1) I don't know that I used a forged or invalid credit card. Generally speaking, the use of forged or invalid credit cards can infer that the perpetrator has subjectively cheated, because it should be clear whether the perpetrator himself has a credit card. However, in practice, there may be such a situation that others lie that they have the actor's credit card and give it to the actor in order to obtain property, and the actor believes it. For a situation like this, of course, we can't think that the perpetrator has the intention of fraud. (2) Misuse or fraudulent use of another person's credit card for the purpose of illegally possessing another person's property. If the actor owns his own credit card, but uses it due to mistakes or other reasons, it is not intentional, and of course it cannot be punished as a crime. In addition, the actor knowingly uses other people's credit cards, but uses them for jokes, urgent needs and other reasons, and then immediately explains to the legal cardholder and repays them. Since the perpetrator has no purpose of illegally possessing other people's property, he should not be punished as a crime. (3) Overdraft of goodwill. Overdraft in good faith is allowed, so there is no problem of constituting a crime. Generally speaking, it is a question of distinguishing whether the overdraft of the actor belongs to goodwill or malice. If the actor overdraws continuously and causes huge overdraft, or the overdraft amount is not returned on time and continues to exceed the limit and refuses to repay, it can be considered as malicious overdraft; If the actor overdraws within the limit or overdraws beyond the limit but repays on time, it is a goodwill overdraft.
(2) Whoever steals a credit card and uses it shall be deemed as theft.
The third paragraph of this article stipulates that "whoever steals a credit card and uses it shall be punished in accordance with the provisions of Article 264 of this Law." This situation refers to the behavior of thieves stealing other people's credit cards and then using them to defraud property. The so-called theft and use of credit cards include the use of credit cards by criminals after stealing them, and the use of stolen credit cards by accomplices or friends of criminals. In the latter case, an accomplice or friend of a thief can be treated as a thief. If someone uses a credit card without knowing that it has been stolen, the user should not be punished for theft, but should be dealt with according to the specific circumstances and circumstances of its use and relevant laws. If a thief steals a credit card, he tells his friend that he found the credit card and used it by his friend. In this case, the user should not be treated as theft, but as someone else's credit card.
(3) The qualitative problem of fraudulent acts of forging credit cards and using forged credit cards.
Before the establishment of the crime of credit card fraud, there were three views in the criminal law circles in China: The first view was that credit cards were securities with functions of money. Therefore, as long as the cardholder has a profit-making purpose subjectively and forges objectively, he should be convicted of forging securities. The second view is that forgery is the means and fraud is the purpose, and the implicated offender who constitutes the crime of forgery of securities fraud should be punished as a felony. The third view is that the crime of fraud should be directly identified. Because China's current securities include checks, stocks, passbooks, bills of exchange, government bonds and treasury bills (excluding foreign credit cards circulating in China), the actor's purpose is not to make profits, but to illegally occupy public property. In fact, it is unprofitable to buy goods with cards. The object of this kind of behavior is not the normal operation of the national economy, but the social property relationship. After the establishment of the crime of credit card fraud, the act of forging credit cards constitutes the crime of forging or altering financial tickets as stipulated in the cost law, while the act of using forged credit cards constitutes the crime of credit card fraud, and there is an implicated relationship between them, which should be severely punished as a felony. Because the statutory penalties for the two crimes are the same, it is appropriate to punish the consequential offense in the implicated offense with the crime of credit card fraud.
Fourth, punishment.
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 judicial interpretation, it refers to people who defraud 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; Causing adverse effects due to its behavior; Wait a minute.
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 200,000 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, causing particularly bad effects; Wait a minute.
V. Legal and judicial interpretation
[Criminal Law Provisions]
Article 195 Whoever commits fraud by letter of credit under any of the following circumstances 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 forged or altered letters of credit or accompanying documents and documents;
(2) Using an invalid letter of credit;
(3) defrauding a letter of credit;
(4) fraudulent activities of letters of credit by other means.
Article 199 Whoever commits the crimes specified in Articles 192, 194 and 195 of this section, if the amount is especially huge and especially heavy losses are caused to the interests of the state and the people, shall be sentenced to life imprisonment or death, and his property shall also be confiscated.
Article 200 Where a unit commits the crimes specified in Articles 192, 194 and 195 of this section, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; 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; 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.
Article 287 Whoever uses computers to commit financial fraud, theft, corruption, misappropriation of public funds, theft of state secrets or other crimes shall be convicted and punished in accordance with the relevant provisions of this Law.
[Judicial interpretation]
The Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases.
(1996.12.16 Fa Fa Fa Fa [1996] No.32).
Six, according to the provisions of article thirteenth of the "decision", the use of letters of credit for fraud, constitutes a letter of credit fraud.
If the amount of the letter of credit defrauded by an individual is more than 654.38+10,000 yuan, it is a "huge amount"; Individuals who defraud the letter of credit for more than 500,000 yuan belong to "extremely huge amount".
If the amount of unit letter of credit fraud is more than 500 thousand yuan, it belongs to "huge amount"; The amount of unit letter of credit fraud is more than 2.5 million yuan, which belongs to "extremely huge amount".
Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on Prosecution Standards for Economic Crimes 200 1.5:
Forty-six, credit card fraud (article 196 of the Criminal Law)
Credit card fraud, suspected of one of the following circumstances, should be prosecuted:
1, using forged credit cards, or using invalid credit cards, or using other people's credit cards for fraudulent activities, with the amount of more than 5,000 yuan;
2, malicious overdraft, the amount of more than five thousand yuan.