The court of first instance found that on April 22, 2004, the defendant Liu applied for a credit card in Guangde County Sub-branch of a bank with a credit line of RMB 50,000. After that, Liu used the card for overdraft consumption. After the last repayment on April 5, 20 15, Liu did not continue to repay. After Liu left Guangde County to change his mobile phone number, he did not inform the bank staff of the new contact information. After more than three months of bank door-to-door collection and announcement collection, Liu has not returned it. As of the time of the crime, * * * overdrawn the principal by 43,685.9438+0 yuan.
2065438+July 2008, Liu was arrested in Wuhan, Hubei. The court of first instance held that the defendant Liu maliciously overdrawn the credit card and committed credit card fraud, which amounted to a large amount, and his behavior constituted the crime of credit card fraud. After Liu was brought to justice, he was able to truthfully confess his criminal facts, and his behavior constituted a confession, and he voluntarily pleaded guilty in court, which can be given a lighter punishment according to law. To sum up, the defendant Liu was convicted of credit card fraud, sentenced to one year and six months in prison and fined RMB 30,000.
After the verdict was pronounced in the first instance, Liu appealed that his credit card was lost halfway, and he repaid more than 6,000 yuan in installments after the card was reissued. The card cannot be used normally after repayment; The bank failed to receive two collections; His family assets, medical insurance, etc. Nothing has changed. He wants to pay off the principal and late fees together after his son graduated from college, and has no intention of escaping; In addition, the mobile phone stopped unexpectedly at the end of 20 17.
Xuancheng Intermediate People's Court held that the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Amending the Specific Application of Laws in Handling Criminal Cases of Impairment of Credit Card Management, which was implemented in June 5438+February last year, stipulated that the crime of credit card fraud was malicious overdraft of more than 50,000 yuan, while in this case, Liu's malicious overdraft was less than 50,000 yuan, so the judgment should be made according to the revised judicial interpretation. Therefore, Liu's behavior does not constitute the crime of credit card fraud. In a word, he was acquitted. According to Xin' an Evening News
Lawyer's statement: the change of the initial penalty amount avoids the lag and mechanization of the law.
What is the crime of credit card fraud? Is there a limit for malicious overdraft? Does the second-instance judgment of Xuancheng Intermediate People's Court mean that China has relaxed the identification standard of credit card fraud?
Fu Jian, a lawyer of Henan Yulong Law Firm, said that article 196 of the Criminal Law stipulates that 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.
Fu Jian said that regarding the amount of credit card fraud, Article 54 of the Criminal Law and 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) stipulate that if a cardholder overdraws beyond the prescribed limit or time limit for the purpose of illegal possession, and fails to return it after being urged twice by the issuing bank for more than three months, the amount of more than 10,000 yuan shall be filed for prosecution. If the amount is more than 654.38+10,000 yuan but less than 654.38+10,000 yuan, and all overdraft interest has been repaid before the public security organ files the case, and the circumstances are obviously minor, criminal responsibility may not be investigated according to law.
Lawyer Zhao Liangshan, a senior partner of Shaanxi Hengda Law Firm, said that the key point of the difference between the results of the first trial and the second trial of this case lies in whether the defendant Liu has malicious credit card overdraft behavior in the sense of criminal law and the criteria for determining malicious overdraft. In the trial of first instance, the amount of malicious overdraft refers to the amount of ordinary fraud, and the starting point is low; When the court heard the case in the second instance, the new judicial interpretation stipulated the amount of filing, and the starting point was clearly 50,000 yuan. Therefore, different criminal filing standards lead to different trial results in the courts of first instance and second instance.
Zhao Liangshan believes that the court of second instance changed the judgment correctly because of 0 1030.
Zhao Liangshan said that the change of judgment in the second instance does not mean that the state has relaxed the criteria for determining the crime of credit card fraud. The second instance is based on the laws, judicial interpretations and objective facts of the case published by the legislature. Although before the promulgation of the Decision of the Supreme People's Court and the Supreme People's Procuratorate on Amending the Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Impairment of Credit Card Management, many credit card overdrafts below 50,000 yuan were deemed as credit card fraud crimes, but the new judicial interpretation raised the starting point, leading to decriminalization of credit card overdrafts below 50,000 yuan. But this is not to relax charges, but to fully distinguish private lending from criminal credit card fraud on the basis of combining the characteristics of credit cards and China's economic and social development. After careful consideration and market positioning, we will make new standards for credit card crimes, so as to better conform to the current national conditions and credit card market in China and better define crime and non-crime. Law and society are inseparable. With the development of social economy, the change of penalty in law is advancing with the times, not relaxing, but to avoid the lag and mechanization of law.
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