Today, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Impairment of Credit Card Management, which came into effect on June 65438+February 65438+June 2009. The Interpretation clearly stipulates the conditions under which "malicious overdraft" of credit cards constitutes a crime, as well as the related issues of identification and punishment of "malicious overdraft", and defines "for the purpose of illegal possession" to distinguish it from the act of overdraft in good faith.
Sun Qian, Deputy Procurator-General of the Supreme People's Procuratorate, said that according to Article 196 of the Criminal Law of People's Republic of China (PRC), "malicious overdraft" belongs to the crime of credit card fraud. The judicial interpretation of "two highs" clearly stipulates the conditions for "malicious overdraft" to constitute a crime:
First, there are two restrictions on "malicious overdraft" in the judicial interpretation: one is the two collections of the issuing bank; Second, it is not returned for more than three months. This excludes the behavior of not returning on time because of not receiving the bank's dunning notice or other dunning documents. If the cardholder fails to return it within a certain period of time, it does not belong to "malicious overdraft".
Second, because the crime of "malicious overdraft" is a deliberate crime, it has the subjective purpose of illegal possession, which is a very important constituent element of this act. "Illegal possession" is the main boundary between "malicious overdraft" and "goodwill overdraft". Only the overdraft for the purpose of illegal possession belongs to "malicious overdraft" and constitutes a crime.
In this judicial interpretation, "for the purpose of illegal possession", combined with judicial practice, listed six situations, such as knowing that it is impossible to repay and a large number of overdrafts are not repaid; Spending overdraft is not paid back; Concealing and changing communication methods after overdraft to avoid payment by financial institutions. These situations are all manifestations of "for the purpose of illegal possession".
Third, this judicial interpretation clarifies the amount of "malicious overdraft", which refers to the money that has not been returned and has not been returned, excluding the late payment fee and compound interest charged by the issuing bank.
Fourth, according to the criminal policy of combining leniency with severity, those who repay overdraft interest before the court decides or the public security organ files a case will be given a lighter punishment or will not be investigated for criminal responsibility. This can not only investigate and deal with the fraud of "malicious overdraft" according to law, but also play the role of legal warning and education, and minimize the scope of criminal attack.
Finally, the amount of malicious overdraft of credit card refers to the unpaid amount, excluding the late payment fee and compound interest charged by the issuing bank. Malicious overdraft, the amount of which is more than 6,543.8+0,000 yuan but less than 6,543.8+0,000 yuan, shall be deemed as "a large amount" as stipulated in Article 196 of the Criminal Law; If the amount is more than 654.38+10,000 yuan and less than 1 10,000 yuan, it shall be deemed as "huge amount" as stipulated in Article 196 of the Criminal Law; If the amount is more than 6,543.8+0,000 yuan, it shall be deemed as "extremely huge amount" as stipulated in Article 196 of the Criminal Law.
Criminal liability for malicious overdraft: 6,543,800 yuan or more can be sentenced to indefinite period.
Quantitative and qualitative criminal responsibility
1 10,000 ~ 1 10,000 yuan is relatively large, and it shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.
And impose a fine of not less than 20,000 yuan but not more than 200,000 yuan.
10000 ~ 1000000 yuan, if the amount is huge, it shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years.
And impose a fine of not less than 50,000 yuan but not more than 500,000 yuan.
If the amount of 654.38+0 million yuan is extremely huge, he shall be sentenced to fixed-term imprisonment of not less than 10 or life imprisonment.
And impose a fine of not less than 50,000 yuan but not more than 500,000 yuan or confiscation of property.
According to the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II) issued in June, 5438+08, non-state employees of companies, enterprises or other units who accept bribes of more than 5,000 yuan shall file a case for prosecution.
It is clearly stipulated that employees of companies, enterprises or other units take advantage of their positions to ask for or illegally accept other people's property and seek benefits for others, or in economic exchanges, take advantage of their positions and accept kickbacks and service fees in various names in violation of state regulations, which are owned by individuals, and the amount is more than 5,000 yuan, and should be filed for prosecution.
According to the regulations, in order to seek illegitimate interests, giving property to the staff of companies, enterprises or other units, if the amount of personal bribes is more than 10,000 yuan, and the amount of unit bribes is more than 200,000 yuan, it should be filed for prosecution.
The regulations point out that staff members of state-owned companies, enterprises and institutions who take advantage of their positions to make illegal profits for relatives and friends should file a case for prosecution if they are suspected of one of the following circumstances:
-Causing direct economic losses of more than 100,000 yuan to the country;
—— Causing their relatives and friends to make illegal profits of more than 200,000 yuan;
—— Causing the relevant units to go bankrupt, suspend business or stop production for more than six months, or having their licenses and business licenses revoked and ordered to close down, cancel or dissolve;
—— Other circumstances that cause great losses to national interests.
Selling state-owned assets at a low price and losing more than 300 thousand will be prosecuted.
According to "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)" issued on June 5438+08, 2008, those who engage in malpractices for personal gain and sell state-owned assets at low prices, causing direct economic losses of more than 300,000 yuan to the country, should file a case for prosecution.
The regulations point out that the directly responsible person in charge of a state-owned company, enterprise or its superior competent department, who engages in malpractices for personal gain and sells state-owned assets at a low price, should file a case for prosecution if he is suspected of one of the following circumstances: causing direct economic losses of more than 300,000 yuan to the country; Causing the relevant units to go bankrupt, suspend business or stop production for more than six months, or having their licenses and business licenses revoked and ordered to close down, cancel or dissolve; Other circumstances that cause great losses to national interests.
It is clearly stipulated that the directly responsible person in charge of state-owned companies, enterprises and institutions shall be investigated for responsibility if they are defrauded due to serious irresponsibility in the process of signing and performing contracts and are suspected of one of the following circumstances: if the amount of direct economic losses to the country is more than 500,000 yuan; Causing the relevant units to go bankrupt, suspend business or stop production for more than six months, or having their licenses and business licenses revoked and ordered to close down, cancel or dissolve; Other circumstances that cause great losses to national interests.
According to the regulations, the staff of financial institutions, companies and enterprises engaged in foreign trade activities are seriously irresponsible, resulting in fraudulent purchase of foreign exchange of more than one million US dollars or evasion of foreign exchange of more than 10 million US dollars, and should be filed for prosecution.
Fraudulent loans reaching 6,543,800 yuan will be filed for prosecution.
According to the "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II)" issued in June, 5438+08, loans, bill acceptance, letters of credit, guarantees, etc., obtained by deception, and the amount is more than one million yuan, should be filed for prosecution.
According to the regulations, any loan, bill acceptance, letter of credit, guarantee, etc. Anyone suspected of being defrauded by a bank or other financial institution under any of the following circumstances shall file a case for prosecution:
-Obtaining loans, bill acceptance, letters of credit, letters of guarantee, etc. By fraudulent means, the amount is more than one million yuan;
-Obtaining loans, bill acceptance, letters of credit, letters of guarantee, etc. By fraudulent means, causing direct economic losses of more than 200,000 yuan to banks or other financial institutions;
-Obtaining loans, bill acceptance, letters of credit, letters of guarantee, etc. Take fraudulent means for many times, although it does not meet the above-mentioned amount standard;
—— Other circumstances that cause heavy losses to banks or other financial institutions or have other serious circumstances.
Financing terrorist activities will be prosecuted.
According to the "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (II)" issued in June, 5438+08, individuals who finance terrorist organizations or carry out terrorist activities should file a case for prosecution.
The regulations specifically point out that "funding" refers to the act of raising funds, providing materials or providing places and other material facilities for individuals who organize or carry out terrorist activities. "Individuals who commit terrorist activities" include individuals who plan to commit, prepare to commit and actually commit terrorist activities.
Intentional use of counterfeit money up to 400 pounds will be prosecuted.
According to the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Criminal Cases under the Jurisdiction of Public Security Organs (II) issued on June 5438+08, 2008, anyone who knowingly holds and uses counterfeit currency with a total denomination of more than 4,000 yuan or a monetary amount of more than 400 pieces shall file a case for prosecution.
According to the regulations, anyone who smuggles counterfeit money with a total denomination of more than 2,000 yuan or a currency amount of more than 200 pieces shall file a case for prosecution.
The total denomination of counterfeit currency is more than 2,000 yuan or the amount of counterfeit currency is more than 200 pieces; Making money patterns or providing patterns for others to counterfeit money; Other circumstances in which criminal responsibility should be investigated for counterfeiting currency. Suspected of one of the above circumstances, should be filed for prosecution.
According to "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Criminal Cases under the Jurisdiction of Public Security Organs (II)" issued on June 5438+08, 2008, the amount of bribes taken by non-state staff of companies, enterprises or other units is regarded as the standard for filing economic crimes.
It is clearly stipulated that employees of companies, enterprises or other units take advantage of their positions to ask for or illegally accept other people's property and seek benefits for others, or in economic exchanges, take advantage of their positions and accept kickbacks and service fees in various names in violation of state regulations, which are owned by individuals, and the amount is more than 5,000 yuan, and should be filed for prosecution.
According to the regulations, in order to seek illegitimate interests, giving property to the staff of companies, enterprises or other units, if the amount of personal bribes is more than 10,000 yuan, and the amount of unit bribes is more than 200,000 yuan, it should be filed for prosecution.
The regulations point out that staff members of state-owned companies, enterprises and institutions who take advantage of their positions to make illegal profits for relatives and friends should file a case for prosecution if they are suspected of one of the following circumstances:
-Causing direct economic losses of more than 100,000 yuan to the country;
—— Causing their relatives and friends to make illegal profits of more than 200,000 yuan;
-Causing the relevant units to go bankrupt, suspend business or stop production for more than six months, or having their licenses and business licenses revoked, and being ordered to close down, cancel or dissolve;
—— Other circumstances that cause great losses to national interests.
Selling state-owned assets at a low price and losing more than 300 thousand will be prosecuted.
According to "Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II)" issued on June 5438+08, 2008, those who engage in malpractices for personal gain and sell state-owned assets at low prices, causing direct economic losses of more than 300,000 yuan to the country, should file a case for prosecution.
The regulations point out that the directly responsible person in charge of a state-owned company, enterprise or its superior competent department, who engages in malpractices for personal gain and sells state-owned assets at a low price, should file a case for prosecution if he is suspected of one of the following circumstances: causing direct economic losses of more than 300,000 yuan to the country; Causing the relevant units to go bankrupt, suspend business or stop production for more than six months, or having their licenses and business licenses revoked and ordered to close down, cancel or dissolve; Other circumstances that cause great losses to national interests.
Economic crime, credit card fraud, 50 thousand! You'd better consult an experienced lawyer! But you don't know the whole process! You should have more evidence in your favor! I hope you can solve it soon!
The standard for filing malicious overdraft of credit cards "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases Affecting Credit Card Management" jointly issued by the Supreme People's Court and the Supreme People's Procuratorate clearly defines the constitutive conditions of the crime of malicious overdraft of credit cards, the determination and punishment of malicious overdraft and other related issues, and defines "for the purpose of illegal possession" to distinguish it from the act of overdraft in good faith.
According to the explanation, if the cardholder overdraws beyond the prescribed limit or term for the purpose of illegal possession, and fails to return it for more than 3 months after being urged twice by the issuing bank, it shall be deemed as "malicious overdraft".
Sun Qian, Deputy Procurator-General of the Supreme People's Procuratorate, said that according to Article 196 of the Criminal Law of People's Republic of China (PRC), "malicious overdraft" belongs to the crime of credit card fraud. The judicial interpretation of "two highs" clearly stipulates the conditions for "malicious overdraft" to constitute a crime:
1. "Malicious overdraft" adds two restrictions: First, the issuing bank has made two collections; Second, it is not returned for more than three months. This excludes the behavior of not returning on time because of not receiving the bank's dunning notice or other dunning documents. If the cardholder fails to return it within a certain period of time, it does not belong to "malicious overdraft".
2. The crime of malicious overdraft credit card fraud is a deliberate crime, so it has the purpose of illegal possession subjectively, which is a very important constituent element of this behavior. "Illegal possession" is the main boundary between "malicious overdraft" and "goodwill overdraft". Only the overdraft for the purpose of illegal possession belongs to "malicious overdraft" and constitutes a crime.
In this judicial interpretation, "for the purpose of illegal possession", combined with judicial practice in recent years, listed six situations, such as knowing that it is impossible to repay and a large number of overdrafts are not repaid; Spending overdraft is not paid back; Concealing and changing communication methods after overdraft to avoid payment by financial institutions. These situations are all manifestations of "for the purpose of illegal possession".
3. Define the amount of "malicious overdraft". The amount of "malicious overdraft" refers to the amount that has not been returned and has not yet been returned, excluding the late payment fee and compound interest charged by the issuing bank.
4. According to the criminal policy of combining leniency with severity, those who repay the overdraft interest before the court decides or the public security organ files a case will be given a lighter punishment or will not be investigated for criminal responsibility, so that the fraud of "malicious overdraft" will be investigated according to law, and at the same time, the legal warning and education function will be brought into play to minimize the criminal blow.
Criminal law:
Article 266 Whoever defrauds public or private property in a relatively large amount shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; If the amount is huge or there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined; 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 or confiscated. Where there are other provisions in this Law, such provisions shall prevail.
Article 177 Relevant provisions: Forged credit cards are "serious":
Forging more than 5 credit cards but less than 25; Forge the credit card memory balance and overdraft limit, and the single or total amount is more than 200,000 yuan and less than 1 10,000 yuan; Forging more than 50 blank credit cards and less than 250; Other serious circumstances.
Article 177th of the Criminal Law stipulates that "the circumstances are particularly serious":
Forging more than 25 credit cards; Forged credit card memory balance and overdraft limit alone or in total more than 6,543,800 yuan; Forged more than 250 blank credit cards; Other particularly serious circumstances.
The situation of "fraudulently using another person's credit card" as stipulated in Item 3, Paragraph 1, Article 196 of the Criminal Law.
Pick up other people's credit cards and use them; Use other people's credit cards in the area; Stealing, selling, distributing or otherwise illegally obtaining other people's credit card information, and using it through the Internet, communication terminals, etc. ; Other acts of fraudulently using other people's credit cards.
Criteria for filing credit card fraud: According to relevant laws and regulations, anyone suspected of one of the following circumstances shall be prosecuted:
1. Use forged credit cards, credit cards fraudulently obtained by fraudulent use of false identification, invalid credit cards, or fraudulent use of other people's credit cards for credit card fraud, with an amount of more than 5,000 yuan.
"Fraudulent use of another person's credit card" as mentioned in Item (3) of Paragraph 1 of Article 196 of the Criminal Law includes the following situations:
(1) Picking up other people's credit cards and using them;
(2) defrauding others of their credit cards and using them;
(three) stealing, buying, defrauding or other illegal means to obtain other people's credit card information and use it through the Internet, communication terminals, etc. ;
(four) other circumstances of fraudulent use of other people's credit cards.
2. Malicious overdraft of RMB 654.38 million.
If the cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and fails to return it for more than 3 months after being twice collected by the issuing bank, it shall be deemed as "malicious overdraft" as stipulated in Article 196 of the Criminal Law. 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:
(a) knowing that there is no repayment ability and a large amount of overdraft can not be returned;
(two) squandering overdraft funds, unable to return;
(3) Escaping after overdraft, changing contact information and evading bank collection;
(4) evading or transferring funds, concealing property or evading repayment;
(five) the use of overdraft funds for illegal and criminal activities;
(six) other acts of illegal possession of funds and refusal to return them. The amount of malicious overdraft refers to the condition specified in the first paragraph.
The amount that the cardholder refuses to return or the amount that has not been returned. Does not include compound interest, late fees, handling fees and other fees charged by the issuing bank.
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