First, the boundary between credit card fraud and non-crime
According to the provisions of the Criminal Law, the perpetrator must use a credit card to defraud a large amount of property. Therefore, whether the use of credit cards to defraud property reaches a large amount is the boundary between credit card fraud and non-crime. For a small amount of credit card fraud, it cannot be punished as a crime. Another sign that distinguishes the crime of credit card fraud from non-crime is whether the perpetrator has the purpose of illegal possession subjectively. For example, borrowing other people's credit cards for shopping consumption is also a fraudulent act of using credit cards. However, because the actor has no subjective purpose of illegally possessing other people's property, he can only form a civil legal relationship between the parties, but not constitute a crime.
In judicial practice, the crime of fraud caused by malicious overdraft of credit cards is easily confused with the arrears dispute caused by malicious overdraft of credit cards. Because both of them show that the actor failed to repay the principal and interest to the issuing bank in time after overdraft, the basic criterion of the difference is whether the actor subjectively has the purpose of illegally occupying other people's property. Specifically, it can be judged from the following aspects:
(1) Whether the actor fabricated or concealed his true identity. Anyone who overdraws with a fictional identity can show that he subjectively has the purpose of illegally occupying other people's property, and it is a malicious overdraft, not a goodwill overdraft.
(2) whether the actor has the ability to repay. The actor has the ability to repay the overdraft principal and interest after overdraft, but refuses to repay it, which can show that he subjectively has the purpose of illegally occupying other people's property; If the cardholder is really unable to repay the overdraft principal and interest for a while due to poor credit, it should be a goodwill overdraft.
(3) the behavior of overdraft. If the perpetrator lied that the credit card was lost, and went through the formalities of reporting the loss to the bank, and made many or a large number of overdrafts, it shows that he subjectively has the purpose of illegally occupying other people's property and belongs to malicious overdraft.
(4) Reasons for overdraft. In the overdraft of goodwill, people often overdraw according to the regulations because they need money urgently; In malicious overdraft, the actor overdraws not out of urgent need or necessity.
(5) Performance after overdraft. The perpetrator of malicious overdraft often spends a lot after overdraft, or engages in other illegal and criminal activities, or runs away after overdraft is successful. However, the actor who overdraws in good faith can often make additional deposits to the issuing bank in time after the overdraft, make up the overdraft and pay interest according to the regulations.
Second, the boundary between the crime of credit card fraud and the crime of forging financial tickets.
According to Article 177 of the Criminal Law, the act of "forging credit cards" should be convicted and punished for the crime of forging financial tickets. Whoever uses forged credit cards for fraudulent activities shall be convicted and punished in accordance with this crime. If the perpetrator forges a credit card and then uses it himself, the act of forging and using a credit card violates both the crime of forging financial tickets and the crime of credit card fraud. This kind of situation actually belongs to a kind of implicated offense, forgery is a means behavior, and utilization behavior is an objective behavior. Therefore, according to the principle of "choose a felony and be given a heavier punishment", according to the circumstances and amount of the crime committed by the perpetrator, the legal punishment range applicable to each crime should be determined, and then the heavier one should be chosen instead of combining several crimes by comparing the severity of these two legal punishments. If the perpetrator forges a credit card not only for the purpose of using the credit card for fraud, but also for selling or seeking other benefits, he should be punished for the crime of credit card fraud and the crime of forging financial tickets.
Third, the qualitative problem of stealing credit cards and using them.
The so-called theft and use of credit cards not only includes the use of credit cards after the actor steals them, but also includes the theft of credit cards by the actor and the use of credit cards by his associates or friends. There are different views on the nature of the former case in the past judicial practice. One view is that credit card is a valuable payment voucher, with which property or consumer services can be obtained, and stealing credit card constitutes theft. The behavior of the perpetrator using the cardholder's signature to use a credit card is a continuation of theft and a means to achieve the purpose of theft, so it can only be regarded as theft. The second opinion is that stealing credit cards does not mean possessing property, and the transfer of property ownership is mainly realized through the actor's counterfeiting behavior, so it should be convicted of fraud. The third view is that stealing credit cards is a crime, and illegal use serves the purpose of theft, not the result, so it is the meaning of theft and fraud. According to the principle of heavier punishment, theft is generally punished. In view of the above situation, "the Supreme People's Court's Reply on Wang Ping's Request for Instructions on How to Determine the Nature of Stealing Credit Cards to Cheat Commodities" points out that the defendant's behavior of shopping and spending by forging the owner's signature after stealing credit cards is the process of transforming the uncertain value contained in credit cards into concrete property, which is the continuation of theft. Therefore, the crime of fraud should be defined as theft. The revised criminal law has adopted the Supreme People's Court's opinion, and the third paragraph of Article 196 of the Criminal Law clearly stipulates the nature of this situation, that is, those who steal credit cards and use them shall be convicted and punished in accordance with the provisions of Article 264 of the Criminal Law on theft. The calculation of the amount should not be based on the deposit and credit amount on the stolen credit card, but on the actual consumption or profit of the actor. Because the credit card shows the deposit balance and credit limit of the legal cardholder, the actor only got the opportunity of illegal profit after stealing the credit card and before illegally using the credit card, but did not actually get the above money. In other words, the economic interests of legitimate cardholders have not been actually infringed.
Therefore, the deposit and credit amount indicated on the credit card but not actually obtained by the actor cannot be counted as the theft amount. In the latter case, if the user colludes with the thief, it should be punished as the * * * offender of theft; If there is no collusion between the user and the thief, and the user does not know that the credit card used has been stolen and used, it should not be punished as a thief, but should be dealt with according to the specific circumstances and circumstances of use. For example, if a user doesn't know that the credit card has been stolen, but knows that the credit card is not the thief's own, but still uses the credit card in the name of the cardholder, it can be punished as credit card fraud. About the theft of invalid credit cards. Invalid credit cards refer to forged, discarded and stopped credit cards. Simply stealing invalid credit cards does not constitute a crime. However, the person who uses or sells this credit card after stealing it cannot constitute theft and should be punished as credit card fraud.
However, some people think that stealing other people's credit cards also belongs to the situation of "fraudulently using other people's credit cards", which obviously cannot be established. On the occasion of stealing credit cards and using them, although there is fraudulent use of credit cards, based on the symbolic property right of credit cards, the actor stealing credit cards does not mean directly possessing the property, and only by using the property can the symbolic property right 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 fraud, which can only be punished as theft, and it is not appropriate to evaluate fraud as an act that constitutes credit card fraud.
Fourth, the qualitative problem of stolen credit cards after reporting the loss.
If the credit card is lost or stolen, the risk of card loss caused by the cardholder before or after reporting the loss is still borne by the cardholder himself; The risk of losing the card after the loss report or after the loss report takes effect for a period of time shall be borne by the issuing bank. After the loss report comes into effect, the original valid credit card becomes invalid. So how can a thief identify a stolen credit card after the cardholder reports the loss? Some scholars believe that this kind of behavior should be classified as credit card fraud. The reason is:
(1) After the loss report of the credit card takes effect, it will lose its use effect, and any special merchant will no longer accept the credit card for consumption activities. In some places where the credit card management system is not perfect, there is a time lag between the bank sending the credit card loss report information and the special merchants receiving the bank's payment stop instruction, which makes it possible to use invalid credit cards, and the special merchants accept them according to the valid credit cards within the time lag, and the losses caused by this will be borne by the banks. The bank is the owner of the lost property, and the special merchant is the handler and does not bear the loss.
(2) Due to the loss report of the credit card, the stolen credit card is invalid. The previous act of stealing credit cards has lost its effect on the actor's illegal possession of property. The only thing that can make the actor achieve the purpose of illegal possession of property is to continue to use the invalid credit card. Using an invalid credit card itself is a fraud that fabricates facts and conceals the truth.
(3) The behavior of legitimate cardholders using stolen credit cards after reporting the loss and stopping payment conforms to the characteristics of fraud. The special merchant is the agent designated by the issuing bank, and its legal performance of duties should be regarded as the behavior of the bank. Therefore, this kind of behavior should be recognized as the crime of credit card fraud. The author believes that this view is debatable. The criminal law has made it clear that "stealing credit cards and using them" is convicted and punished according to theft. The object of theft here, as mentioned above, is limited to real and valid credit cards, and "use" is not divided into before and after the loss is reported. Even after the loss report takes effect, it should still be convicted and punished for theft according to law. In fact, after a credit card is stolen, no matter whether the stolen credit card is used before or after the loss is reported, there is credit card fraud. Although the use after reporting the loss conforms to the characteristics of the crime of credit card fraud, the use before reporting the loss also conforms to the characteristics of the crime of credit card fraud, except that after reporting the loss, it belongs to fraudulent use of another person's invalid credit card, and before reporting the loss, it belongs to fraudulent use of another person's valid credit card, but they all have the characteristics of fabricating facts and concealing the truth. Since fraudulent use of fraud before reporting the loss is regarded as theft, fraudulent use of fraud after reporting the loss is unnecessary and unreasonable to be regarded as credit card fraud. As for the transfer of property loss risk responsibility between the cardholder and the issuing bank before or after the loss reporting, it should not affect the determination of the nature of the behavior. What's more, when the perpetrator swiped the credit card and used it, he didn't know whether the credit card had been reported lost. As far as the actor is concerned, if the same stolen brush is used for the same purpose, the nature of his behavior should not be changed because of whether the cardholder reports the loss. From the practical point of view, it is more appropriate to punish theft. For example, after you steal a credit card, you spend it many times in a special merchant, the first few times before reporting the loss, and the last few times after reporting the loss. So, should we identify theft and credit card fraud separately? Obviously, the same whole behavior that should be regarded as "stealing" is best defined as theft.
Five, the qualitative problem of stealing credit cards
The so-called "stealing credit cards" refers to the behavior of employees of special merchants who take advantage of their work to swipe their cards privately for many times when customers use credit cards to settle accounts, thus illegally occupying credit card funds. Such cases have occurred many times in judicial practice. There are mainly two different opinions on how to define this behavior: the first opinion holds that from the behavioral characteristics, stealing credit cards means repeatedly swiping other people's credit cards and filling out shopping lists by imitating the cardholder's handwriting signature, which is in line with the characteristics of fraudulently using other people's credit cards. The second opinion is that the theft of credit cards should be recognized as the crime of job embezzlement. The reason is:
(1) It is obvious to take advantage of his position. The behavior of employees of special merchants stealing other people's credit cards by taking advantage of the cashier conforms to the elements of the crime of occupational embezzlement and has the convenient conditions for handling and keeping property.
(2) The subject of the crime of duty embezzlement is the personnel of companies, enterprises or other units, including managers and general employees, and employees of special merchants, which meets the requirements of this subject.
(3) The funds of other people's credit cards are directly intercepted by employees of special merchants, which is a typical misappropriation. As for the behavior of repeatedly swiping the card and imitating the signature, it is only a cover-up of its theft, which is different from the fraudulent means of forging the signature to defraud property and services when using someone else's credit card. Therefore, it is not accurate to identify stolen credit cards as fraudulent use of credit cards. [3] The author believes that when a customer uses a card to settle accounts, the actor has super-settlement behavior, but he cannot illegally take cash for himself, that is, he does not directly steal the funds under the control of the customer. In fact, this kind of excess deduction is only to input the relevant consumption or settlement information into the computer terminal, so that the bank can make settlement or deduction again from the capital account or credit line that the customer has deposited. In other words, excessive transfer infringes on the funds entrusted by the customer's private account in the bank. Although the act of stealing credit cards has some characteristics of the crime of duty embezzlement, it seems that there are problems in the target of the crime. Because the specific object of the crime of duty embezzlement is "the property of the unit", and the credit card funds infringed by stealing credit cards are the legitimate property of cardholders, not the property of special merchants. The cardholder pays the bill to the special merchant by credit card, which is not used or kept by the special merchant, so it cannot be converted into "the property of the unit". To take a step back, even if the act of swiping a credit card completely conforms to the constitutive requirements of the crime of duty embezzlement, it is also a coincidence stipulated by law, that is, its behavior conforms to the provisions of both the crime of duty embezzlement and the crime of credit card fraud. According to the principle of heavier punishment, the latter should be chosen as appropriate. Because the statutory penalty for this crime is heavier than the crime of duty embezzlement, the maximum penalty for credit card fraud is life imprisonment, while the maximum penalty for duty embezzlement is 15 years imprisonment; And judging from the standard of "large amount" determined by judicial practice, it is also that the crime of credit card fraud is stricter than the crime of job embezzlement. The former uses more than 5,000 yuan fraudulently as a "large amount", while the latter embezzles more than 5,000 yuan to 20,000 yuan as a "large amount". In other words, there is a big gap between the two conviction standards. Therefore, the act of stealing credit cards should be defined as the crime of credit card fraud. The difference between fraudulent use of credit cards and general fraudulent use of credit cards is that fraudulent use of credit cards does not take advantage of one's position, but is carried out by taking advantage of one's position. Therefore, fraudulent use of credit cards is worse than general fraudulent use, and the circumstances of taking advantage of one's position should be regarded as a heavier punishment. If it is recognized as occupation, it may lead to a lighter punishment or even exemption (because the amount does not meet the conviction standard), which will not be conducive to cracking down on such credit card crimes and increasing the risk prevention of credit cards.
Sixth, the qualitative problem of fraudulent use of other people's credit cards because they are found.
Can finding someone else's credit card and using it all be considered as credit card fraud? The author thinks that it should be specifically identified by combining the different ways of using credit cards and the general principle of crime constitution. To be exact, there are three ways to use the Great Wall Card, Peony Card, Golden Ear Card, Pacific Card and Dragon Card issued by domestic commercial banks at present, that is, using passwords to deposit and withdraw money from ATMs with all-weather service, and using ID cards or signatures to withdraw cash or spend money at banks or special merchants. Generally speaking, people who find other people's credit cards and want to use them usually have to resort to forged identity cards or imitate other people's signatures to defraud the trust of relevant banks or special merchants, so as to achieve the purpose of illegally occupying public and private property. There is no doubt that the crime of credit card fraud should punish this obviously deceptive fraud after being found. But if the consignee picks up the password and withdraws money from the ATM at the same time, this behavior has already happened in Shanghai. The author holds a negative opinion on whether the crime of credit card fraud can be convicted. The reason is that the constitution of every crime in criminal law is an independent and complete system of constitutive elements, which contains various constitutive elements to explain the subjective and objective factual characteristics of harmful behavior. Because the content, quantity and combination of constitutive elements are different, each specific crime has its own characteristics and is different from each other. In other words, the specific elements contained in each crime are indispensable, which is the basis for dividing the boundaries between crime and non-crime and between this crime and that crime in criminal law. As far as the crime of credit card fraud is concerned, the constitutive elements of this crime must include the deceived, who has committed the act of "voluntarily delivering property", which has a direct causal relationship with the fraud of the perpetrator. Without these characteristics, of course, there is no possibility of identifying fraud crimes. Because we can't imagine the crime of fraud without the deceived. When the credit card and its password are found at the same time, if the money picker succeeds in withdrawing money from the ATM, this behavior is undoubtedly fraudulent use of someone else's credit card, but there is no problem that the payer or ATM is cheated. Because the credit card and password are true, it is normal for the payer to pay according to the true information, and it is not necessary to bear any civil liability for compensation. At this point, the actual property loss is the holder of the credit card. However, he did not implement the act of "voluntary delivery of property". The loss is mainly due to the loss of credit cards and passwords.
It can be seen that this kind of fraudulent use of other people's credit cards because they are found is very different from the constitutive elements of the crime of credit card fraud. Why can you still identify the crime of credit card fraud? I'm afraid it can only be attributed to the simple application of legal provisions, and there is no complete application of the theory of crime constitution to analyze and solve problems. The author thinks that for the finder in this case, he found the credit card and its password, and he completely obtained the right to use the funds contained in the credit card. This is the same as picking up someone else's current passbook to withdraw money. If the finder refuses to hand over the money, he can consider the crime of embezzlement according to the nature of encroaching on others' forgetting things. However, forgetting things and lost property should be strictly distinguished, and the crime of embezzlement in criminal law and unjust enrichment in civil law should be clearly distinguished. If the perpetrator finds a credit card that others have accidentally forgotten in a specific place such as a car, an airplane, a house, a restaurant, a bank business hall, etc. , belongs to pick up other people's things and forget. Its characteristic is that forgetful people often know where their belongings may be forgotten, and taking timely measures can quickly restore their possession of forgetting things. If the actor finds other people's credit cards in other public spaces other than the above-mentioned specific places, such as on the road, the seaside, the city square, etc. , belongs to find someone else's lost property. Lost property is an item that the owner completely loses actual control due to negligence. Those who encroach on other people's forgetting things can be investigated for criminal responsibility for embezzlement according to law; Those who encroach on others' lost property can only be treated as unjust enrichment in accordance with the provisions of the Civil Code.
To sum up, when someone else's credit card is fraudulently used because it is discovered, three situations can be identified respectively:
(1) Whoever, after picking up another person's credit card, uses a forged ID card or imitates another person's signature to withdraw money or spend money wantonly shall be convicted of credit card fraud according to law;
(2) Picking up other people's credit cards and passwords in a specific place, and failing to perform other certification procedures, withdrawing money or spending money shall be deemed as embezzlement according to law;
(3) Picking up other people's lost credit cards and passwords in non-specific places and withdrawing money or spending them cannot be regarded as a crime, and should be treated as a civil tort.