I article 196 of the criminal law

Article 196

Whoever commits credit card fraud in 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 and 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 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. Use forged credit cards;

2. Use an invalid credit card;

3. Fraudulent use of other people's credit cards;

4. Malicious overdraft.

Two. Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Credit Card Fraud Cases1995 April.

In order to punish the criminal activities of using credit cards to defraud property according to law, the specific legal problems in handling such cases are explained as follows:

Whoever forges or fraudulently uses his identity card or business license to apply for a credit card in a bank, or forges, alters or fraudulently uses a credit card to defraud property, if the amount is relatively large, shall be investigated for criminal responsibility for fraud.

Individuals who use credit cards for the purpose of illegal possession, or knowing that they are unable to repay, maliciously overdraw property of more than 5,000 yuan, evade tracing, or refuse to return it after being urged by the bank for more than three months, shall be investigated for criminal responsibility for fraud. If the cardholder pays the deposit in the bank, the amount of malicious overdraft shall be calculated according to the amount exceeding the deposit.

If the perpetrator's malicious overdraft constitutes a crime, and all overdraft interest has been returned before being prosecuted by the people's procuratorate, he may be given a lighter or mitigated punishment or be exempted from criminal responsibility.

Bank staff who commit the above-mentioned criminal acts shall be severely punished according to law.

Three. Interpretation 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 (June 5438+February 2009)

Article 6 Criminal Law

"Malicious overdraft" as stipulated in Article 196: for the purpose of illegal possession, if the overdraft exceeds the prescribed limit or time limit, and it is still not returned for more than 3 months after two reminders by the issuing bank, it is deemed as malicious overdraft.

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:

1. Knowing that it has no repayment ability, it overdraws a lot and cannot be returned;

2. Spending overdraft funds and being unable to return them;

3. Escape after overdraft, change contact information, and avoid bank collection;

4. Withdrawing or transferring funds, concealing property or evading repayment;

5. Using overdraft funds for illegal and criminal activities;

6 other illegal possession of funds, refused to return.

The amount of malicious overdraft refers to the principal, excluding compound interest, late fees, handling fees and other fees charged by the issuing bank. Large amount: more than 6,543,800 yuan but less than 6,543,800 yuan; Huge amount: more than 6,543,800 yuan but less than 6,543,800 yuan; The amount is extremely huge: 6,543,800 yuan+0,000 yuan.

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.

Extended data:

According to Article 196 of the Criminal Law, the crime of 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.

The use of credit cards generally refers to the use of forged or invalid credit cards or fraudulent use of other people's credit cards or malicious overdraft.

The crime of credit card fraud is a kind of fraud, and the relationship between this crime and fraud is special law and general law. In this crime, credit card is a tool of crime, not the object of crime.

Where an actor engages in fraudulent activities by using a credit card as a criminal tool, he shall be convicted and punished for this crime in accordance with the principle that the special law is superior to the general law. Therefore, the crime of credit card fraud, in short, is a criminal activity of using the credit embodied in credit cards to defraud.

The constitutive elements of the crime of credit card fraud are as follows:

1. The object of this crime is the credit card management system and the ownership of public and private property.

2. The objective aspect of this crime is the behavior of the actor using fictional facts or concealing the truth to defraud public and private property by credit card.

3. The subject of this crime is a general subject, and a natural person can be the subject of this crime.

4. The subjective aspect of this crime is intentional, and it is direct intentional. Subjectively, the actor must also have the purpose of illegally possessing public and private property. Indirect intentional and negligent crimes cannot constitute this crime.

What needs to be pointed out here is that in all kinds of behaviors of credit card fraud, the perpetrators have different criminal intentions because of their different behaviors.

For example, if a fraudulent crime is committed by using a forged credit card or an invalid credit card, the perpetrator must subjectively know that it is a forged or invalid credit card, otherwise it cannot constitute this crime.

In the case of credit card overdraft, the distinction between goodwill overdraft and malicious overdraft should also be analyzed from the intentional content of the actor. If the perpetrator intentionally occupies other people's property, it is a malicious overdraft, and vice versa.

The specific performance is as follows:

Forged credit card

The so-called forged credit card refers to the credit card made by imitating the texture, pattern, block, pattern and magnetic stripe password of the credit card. The so-called use refers to the act of using forged credit cards to defraud other people's property for the purpose of illegally possessing other people's property. Including buying goods with forged credit cards, withdrawing cash and accepting various services with forged credit cards.

Use an invalid credit card

Invalid credit cards refer to expired credit cards, invalid credit cards, credit cards declared invalid according to laws and relevant regulations, credit cards that the cardholder stops using and returns to the issuing bank within the validity period of the credit card, and credit cards that are invalid due to loss reporting.

In addition, using invalid credit cards also includes using altered cards. The so-called altered card refers to an invalid credit card whose card number has been altered. These credit cards themselves were listed on the stop payment list because of loss reporting or cancellation, but one number on the card was flattened, and then another new number was pressed to escape the blacklist search. Therefore, the altered card is also a fake card.

Fraudulent use of others

Fraudulent use refers to the behavior that a non-cardholder uses the cardholder's credit card to defraud property in the name of the cardholder. According to China's regulations on credit cards, credit cards are limited to legitimate cardholders and cannot be lent or transferred, which is also a principle generally followed by all countries.

However, if the credit card and the ID card are put together and lost at the same time, it may create opportunities for thieves or thieves to use them falsely. After obtaining someone else's credit card, these pickpockets or thieves may take advantage of the fact that before the cardholder finds it lost,

Or take advantage of the time difference of stop payment management, pretend to be the card owner and imitate the card owner's signature, and go to credit card merchants or banks to shop for money or enjoy services. The above are several common situations of using other people's credit cards.

malicious overdraft

Overdraft refers to the act of allowing customers to withdraw money beyond the amount of funds in their accounts with the approval of the bank when there is no funds or insufficient funds in the accounts. Overdraft is essentially a bank lending money to customers.

The so-called malicious overdraft, according to the second paragraph of Article 196 of the Criminal Law, refers to the behavior of credit card holders who overdraw beyond the prescribed limit or refuse to return it after being urged by the issuing bank within the prescribed time limit for the purpose of illegal possession.

The essential difference between goodwill overdraft and malicious overdraft lies in the subjective difference of the actors. Both of them have caused overdraft objectively, but the doer of goodwill overdraft subjectively has the intention to use it first and then repay it, and then return the overdraft and interest, while the doer of malicious overdraft overdraws in order to keep the overdraft for himself, and he doesn't want to repay it at all or is unable to repay it, so as to evade the debt in behavior.

According to the criminal law, in addition to one of the above four acts, the actor must also have a large amount of elements. If the amount is not large, even if the above acts are committed, they are illegal and do not constitute a crime.

As for what is "a large amount", there is no clear judicial interpretation at present. However, according to 1996 "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Fraud Cases", a large amount of personal fraud refers to more than 5,000 yuan. The starting point of a large amount of credit card fraud can refer to this regulation, and it is appropriate to use 5,000 yuan.

References:

Baidu encyclopedia-credit card fraud