Fan Wen (1) Appellant: Liu Moumou, female, 1966, a native of Jinan City, Shandong Province, Han nationality, university education, employee of Radio and Television Bureau of Lixia District, Jinan City, domicile at No.26 Qinghe Street, Changqing District, Jinan City, and now detained in Jinan Detention Center.
Defender: Wang Cheng of Shandong Fajie Law Firm.
The appellant refuses to accept the criminal judgment of Huaiyin District People's Court (20 12) Huai Xing Zi Chu No.5, and now appeals according to law.
Appeal and beg
Request the court of second instance to revoke the criminal judgment of Huaiyin District People's Court of Jinan City (20 12) and change the judgment according to law.
Reasons for appeal
The original judgment found that the amount of the appellant Liu's credit card fraud was 1 127 19.77 yuan.
1. The court of first instance found that the appellant maliciously overdrawn Shenzhen Development Bank Jinan Branch, Industrial Bank Co., Ltd. Jinan Branch, China CITIC Bank Credit Card Center, China Construction Bank Co., Ltd. Jinan Branch and China Everbright Bank Jinan Branch, with the amounts of 8685.95 yuan, 97 17.39 yuan, 7633 yuan and 49 19 yuan respectively. None of the above five banks exceeds 1 10,000 yuan. According to the provisions of the criminal law and judicial interpretation, the objective aspect of the crime of credit card fraud refers to the behavior that the cardholder overdraws 1 10,000 yuan for the purpose of illegal possession, and fails to return it for more than 3 months after being collected twice by the issuing bank. In this case, the amount of credit card overdraft handled by the appellant in the above five banks did not exceed 1 000 yuan, which did not reach the amount stipulated by law. The appellant thinks that it cannot be counted as the amount suspected of credit card fraud. The main reason is: 1, which is not clearly stipulated by the law, that is, it is not expressly stipulated by the law. The malicious overdraft stipulated in the Criminal Law refers to that the cardholder exceeds the prescribed limit or overdraws within the prescribed time limit for the purpose of illegal possession. And the behavior of not returning after being urged by the issuing bank can be clearly defined as one card, not the accumulation of multiple cards. In the stipulation that the amount of illegal income is a crime, the criminal law clearly stipulates all that needs to be accumulated, but the appellant in this case is guilty of credit card fraud with malicious overdraft, and the law does not stipulate that it needs to be accumulated. Judging from its regulations, it cannot be concluded that there is accumulation at present. According to the principle of legality, the legislative purpose of credit card fraud and the principle of modesty of criminal law, the appellant's behavior 2. Judging from the legislative purpose of the crime of credit card fraud and the principle of modesty of criminal law, it is nothing more than to bring convenience to cardholders' transactions, encourage consumption, activate the commodity economy market and operate according to the purpose. Before handling a credit card, the card-issuing bank needs to examine the applicant's relevant documents and sign a relevant contract with the applicant, that is, the premise of obtaining a credit card is to have a contract with the bank first, and the credit card transaction also allows the cardholder to have an overdraft of a certain amount and a certain period. Even if the overdraft exceeds a certain amount and a certain period of time, it can be returned as long as the issuing bank collects it, and it is not illegal to breach the contract. Only if it is not returned after collection, it will be considered as a breach of contract. In the breach of contract, this malicious overdraft breach of contract is defined as a crime to some extent because it will seriously affect economic development and bring heavy negative impact on social development. Malicious overdraft has been brought into China's criminal law to a certain extent. Paragraph 2 of Article 54 of the Provisions of the Ministry of Public Security of the Supreme People's Procuratorate on the Standards for the Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II) stipulates that if the amount of malicious overdraft twice exceeds 10,000 yuan, it constitutes a crime and will be punished by criminal law. In the final analysis, this crime is a criminal sanction for serious breach of contract to protect the financial order and social and economic order of the country. If it is allowed to add up five breaches that do not constitute a crime and calculate them as the amount of credit card fraud, it is not absurd. In addition, it also violates the principle of modesty of punishment. The so-called modesty means that China's criminal law, as a means to punish crimes, is the last line of defense of the law. It requires that punishment should not involve society too widely, and that it should be restrained instinctively. It is said that the superposition of five illegal acts has been achieved.
In short, the five credit cards used by the Appellant in the above five banks, although subjectively overdrawn, all reached the prescribed filing standard of 1 1,000 yuan. In the final analysis, only five banks used credit cards to default. There is neither a legal basis nor the legislative purpose of establishing the crime of credit card fraud and the legal principle of modest punishment. In this case, it is best not to count as credit card fraud.
2. The appellant Liu Moumou's overdraft in Jinan Branch of China Merchants Bank is 20473.4438+0 yuan, which has been settled by the bank through civil disputes, and the People's Court of Shizhong District of Economic South City has made a judgment and put it on file for execution, so it can no longer be treated as a criminal case.
To sum up, the court of first instance found that the amount of the appellant's credit card fraud was 1 127 19.77 yuan, which lacked legal basis. It should be calculated as 35,940.53 yuan, excluding the amount that the above five banks did not constitute a crime, and also excluding the amount of Jinan Branch of China Merchants Bank handled as a civil case: 20038+0 yuan. Therefore, the amount involved in the appellant's crime of credit card fraud should be: 56,305.83 yuan. The appellant has paid off all the overdraft principal, interest and other expenses mentioned above. According to the relevant provisions of the 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, the Appellant requested the court of second instance to revoke the original judgment and revise the judgment according to law on the basis of ascertaining the facts.
I am here to convey
Ji 'nan Intermediate People's Court
Appellant: Liu Moumou
Model essay on the appeal of credit card fraud (II) Appellant: Su Mou, male,1June 973+10 year 10 month, born in Han nationality, with college education. He was criminally detained on May 28th, 20 12 on suspicion of committing credit card fraud, and was arrested on July 3rd of the same year; Are you in custody now? City detention center.
The appellant Ningde City, Fujian Province refused to accept it? No. Criminal judgments, especially legal appeals.
Appeal request:
Request to cancel Ningde City, Fujian Province? No, criminal judgment, changed according to law.
Reasons for appeal:
First, about the crime of credit card fraud.
(1) There are suspicious defects in the investigation procedure.
The transcript of the first interrogation of 1 and 20 12 shows that the defendant applied for the year, month, day, 16-digit card number, four 16-digit card numbers, the overdraft amount of four cards and the overdraft of four cards before the investigators showed their credit cards for identification. Why? Please ask the court to find out!
2.20 12 The interrogation transcript shows that after 65 days (two months), the defendant still clearly and accurately described the application date of four credit cards, 16-digit card number, the overdraft amount of four cards and the overdraft amount of four cards to the first point of every 10,000 yuan. Please ask the court to find out!
(2) The victim, Ningde Branch of Industrial and Commercial Bank of China, was at fault, and the defendant's overdraft amount was inaccurate.
1. According to the relevant provisions on the validity period of bank credit cards and the victim's application report, the three credit cards issued on June 8, 2007, September 6, 2004 and June 6, 2009 have obviously expired. Do you want to renew it? And whether the continuous issuance violates the relevant provisions of bank credit card risk? Please ask the court to find out!
2. According to the relevant regulations of bank credit card credit limit and the victim's application report, the credit limits of three credit cards issued in June 2007, June 2004, June 2004 and June 2009 were 7500, 5000 and 65438 respectively. If so, it is impossible for the defendant to overdraw 22,500 yuan for all three cards! If not, the credit line exceeds 10000 yuan, and the victim has a serious fault, that is, the victim's fault creates conditions for the defendant to illegally overdraw! Therefore, the defendant should not bear the responsibility for the excess.
3. According to the relevant regulations of bank credit card risk management and the victim's application report, the victim began to send a collection task from 2010165438+10, and the earliest date for the defendant to overdraw four cards for the last time was 20165438+April 3, which has reached five months.
4. According to the relevant provisions of bank credit card risk management and the statement provided by the victim, the defendant can withdraw 2500 yuan (generally not more than 2000 yuan) from the ATM at one time, and can withdraw money from the ATM at least twice in a row on the same day (generally once a day), and the defendant can spend 10000 yuan online (the online credit card consumption of Alipay cannot exceed that of 500 yuan within one month), which is obviously risky. How to determine the corresponding responsibility of the defendant for the crime committed by this negligence, please ask the court to consider it carefully.
5. According to the relevant regulations of bank credit card risk management and the victim's application report, the victim issued a credit card with a credit limit of 10000 yuan to the defendant on June 6, 2009, and then issued a credit card with a credit limit of 50,000 yuan on April 20, 2009, which seriously violated the regulation that the credit limit can only be adjusted after six months of normal use and the adjustment limit cannot exceed 50. This violation of the principle of issuing cards gives the defendant a chance to commit crimes. How can the defendant bear the responsibility?
Second, about the crime of fraud.
(1) The victim may not have been defrauded.
1. According to the relevant laws, government bidding is an administrative act with strict procedural provisions. The victims, Guo, Xu and Cheng, as individuals and business personnel of the company, should clearly understand the illegality of relevant procedures and deposit payment. Therefore, when the defendant proposed to pay the deposit in partnership, the victim had an illegal purpose, and there was no misunderstanding that the victim constituted fraud.
2. According to relevant laws, government taxation is also an administrative act, and there are clear collection standards and reduction standards. As a citizen, the victim Guo should know that the tax authorities are not commercial organizations, and it is unthinkable for the tax authorities to handle VIP customers. Therefore, when the defendant proposed to handle VIP clients for him, the victim had the concept of illegal interests, and there was no misunderstanding of the victim who constituted the crime of fraud.
(2) take it? IOUs? Report? Criminal case? Explain that the defendant did not have the purpose of illegal possession.
1. According to the victim's report record and inquiry record, the defendant signed an iou as debt evidence when accepting the victim's money, which is conducive to the victim's recovery, indicating that the defendant did not have the purpose of illegal possession that constituted the crime of fraud.
2. The iou signed by the defendant and the receipt signed by the victim indicate that both parties have clear expectations about whether the money can be returned, and the victim also clearly knows that the defendant does not have the purpose of illegal possession that constitutes the crime of fraud.
Finally, according to the dictation of the defendant and his family, the defendant was in debt for personal reasons and was unable to repay the debts of the victims of the above two crimes for the time being. Although there is cheating, he has been taking some actions to repay the above debts, which does not have the purpose of illegal possession and may not constitute the crime of credit card fraud and fraud. Please ask the court to conduct a comprehensive and systematic review and change the sentence according to law!
I am here to convey
Ningde Intermediate People's Court of Fujian Province