Overdraft credit card for business, the court: non-malicious, does not constitute credit card fraud

2022-04-25 0 By

Article 196 of criminal law stipulates the crime of credit card fraud. In judicial practice, there are many cases that are identified as credit card fraud because of malicious overdraft.However, it is difficult to distinguish between the fraud crime of malicious overdraft and the debt dispute of benign overdraft, and confusion often occurs in practice.Both of them show that the doer fails to return the principal and interest to the issuing bank in time after overdrawing. The basic mark of differentiation is whether the doer has the objective of illegal possession subjectively, which can be judged from the following aspects: 1. Whether the doer uses real identity.If the use of fictitious identity to cheat credit card, is malicious overdraft;2, whether the actor has repayment ability and repayment willingness.If doer has ability to repay those who refuse repayment, belong to maliciously overdraw.If the objective reason is really not on, should belong to goodwill overdraft;3. Use of money after overdraft.Malicious overdraft actors in overdraft after often massive consumption, splurge, or used to carry out illegal criminal activities;4. Post-overdraft performance.Whether there is a continuous and effective repayment behavior, whether to keep in touch and actively communicate with the issuing bank after the overdraft, or whether there is a deliberate evasion of collection;5. Whether the actor has a relatively stable repayment ability, such as whether he has a stable and legal job or income source, and whether the overdraft is basically consistent with the income level.Ou Mou Tao credit Card fraud This court believes that the original trial defendant Ou Mou Tao’s behavior is malicious overdraft, whether there is the purpose of illegal possession, whether it belongs to the scope of criminal law adjustment is the focus of the dispute between the two sides of the case.According to the evidence of this case, Ou Mou Tao in the application of credit cards, and no fiction, concealing the truth of the behavior;Ou Mou Tao used credit card overdraft cash funds, part for business, part for stock speculation, due to poor management, market risks and other reasons;There is no evidence to prove that ou’s overdrawn funds were used for illegal activities, and there is no evidence to prove that it was used for luxury goods consumption or intensive and excessive life consumption;Ou mou Tao also went to the bank in June 2015 to re-sign the notice of payment collection, and did not change his contact number or address to evade collection.The existing evidence provided by the People’s Procuratorate cannot prove that Ou Moutao has the purpose of illegal possession, so the court does not accept the reason proposed by the appeal organ that Ou Moutao has the purpose of illegal possession.In addition, in this case, the defendant Ou Mou Tao before applying for a credit card, in accordance with the requirements of the bank, provided his brother Ou mou 1 as a guarantor.Ou mou 1 is also the Agricultural Bank of China Co., LTD. Dongkou branch of the staff, according to the income proof provided by the branch, Ou Mou January income of 3750 yuan, annual income of 45,000 yuan, the value of its own housing 800,000 yuan.Guarantor Ou mou 1 in June 25, 2015 to the Agricultural Bank of Dongkou branch issued a “guarantee ou Mou Tao platinum card overdue repayment plan”, from July 2015 to repay 2000 yuan a month from wages.As a creditor, the bank can realize the creditor’s right by asking the debtor and the guarantor to repay the debt when it knows ou Did not repay the debt on time. When the creditor’s right can be settled by civil or other means and relieved, it can directly adjust the creditor’s right by criminal law, which violates the principle of modesty of criminal law.Lawyer unifies: alleged maliciously overdraw is to point to, the person that hold a card is a purpose with illegal possession, exceed set limit or set time limit overdraw, and the behavior that still does not return after classics send a card bank to urge.Specifically, the bank that issued the card must collect it twice, and there must be at least 30 days between the two collections, and the collection method must be reasonable to ensure that the cardholder can receive it.Exceed 3 months still do not return after the 2nd urge, belong to maliciously overdraw.The judicial interpretation of the bank collection procedures have clear provisions, so in the defense, the effective collection of the bank, also should be examined and judged.Legal questions can be private letter Beijing Blue Qin lawyers criminal legal service group