恶意透支行为的刑法分析
发布时间：2018-07-16 16:52
【摘要】：信用卡的透支功能允许持卡人在授信额度内先消费、后还款，随着金融市场的发展，信用卡业务在社会中备受青睐，但与此同时，恶意透支犯罪案件也愈来愈多，成为金融犯罪的重灾区，因此，，如何有效规制此类犯罪，为信用卡业务提供良好的发展环境，始终是刑法研究的重点课题。现行刑法以信用卡诈骗罪认定恶意透支行为，司法解释则进一步对恶意透支犯罪的主客观构成要件以及数额认定等问题予以明确，但是，面对恶意透支犯罪案件的特点与复杂形势，恶意透支犯罪的主客观要件方面仍然存在许多问题，刑事立法与司法之间存在一定的不协调之处。本文拟对恶意透支犯罪的主客观要件及相应的立法与司法解释等作进一步的分析研究，共分为四个部分。 第一部分为信用卡恶意透支概述。金融领域与刑法领域“信用卡”的范围存在一定的差异，明确界定“信用卡”的范围将有利于理解恶意透支的本质。正确认识信用卡的“透支期限”与“透支限额”，方能从刑法上对恶意透支行为进行深入分析。区分恶意透支与善意透支需要凭借一定的标准并采取正确的分析路径和方法。 第二部分为恶意透支犯罪主观构成要件解析。“以非法占有为目的”是认定恶意透支的关键性主观要件，其认定须通过一定的客观行为以及其他各种因素进行综合判断。恶意透支持卡人应当限定为“合法持卡人”，但是当“合法性”资格存在瑕疵时则应当具体问题具体分析，主要探讨两种情况：一是以虚假资信证明材料骗领信用卡进行恶意透支的认定，二是借用他人信用卡进行恶意透支的认定。 第三部分为恶意透支犯罪客观构成要件解析。“经发卡银行催收后仍不归还”是认定恶意透支的客观要件，催收的有效形式、有效催收的时间以及部分还款对于催收效力的影响等需要明确认定标准。厘清恶意透支犯罪数额的利息问题、量刑档次及量刑标准问题是正确定罪量刑的关键。 第四部分为恶意透支行为以信用卡诈骗罪论处的思考。透过恶意透支背后审视发卡银行的责任，信用卡业务不规范以及信息共享机制的缺失是诱使恶意透支频发的主要原因，国家刑罚权已经沦为发卡银行催讨欠款的有力工具。恶意透支行为的本质属性是滥用信用而非“诈骗”，恶意透支以信用卡诈骗论处存在诸多不协调之处，恶意透支独立设罪具备现实基础和可行性。
[Abstract]:The overdraft function of the credit card allows the cardholder to spend first and then repay within the credit line. With the development of the financial market, the credit card business is very popular in the society, but at the same time, the malicious overdraft crime cases are more and more. Therefore, how to effectively regulate such crimes and provide a good environment for the development of credit card business has always been the focus of criminal law research. The current criminal law recognizes malicious overdraft with the crime of credit card fraud, and the judicial interpretation further clarifies the subjective and objective elements of the malicious overdraft crime as well as the determination of the amount, but, In the face of the characteristics and complex situation of malicious overdraft cases, there are still many problems in the subjective and objective elements of malicious overdraft crimes, and there are some incoordination between criminal legislation and judicature. This article intends to make further analysis and research on the subjective and objective elements of malicious overdraft crime and the corresponding legislative and judicial interpretation, which is divided into four parts. The first part is a summary of malicious overdraft of credit card. There are some differences between the scope of "credit card" in financial field and criminal law field, so clearly defining the scope of "credit card" will help to understand the essence of malicious overdraft. Only by correctly understanding the "overdraft period" and "overdraft limit" of the credit card, can the malicious overdraft behavior be deeply analyzed from the criminal law. To distinguish malicious overdraft from bona fide overdraft requires a certain standard and a correct analysis path and method. The second part is the analysis of subjective elements of malicious overdraft crime. "taking illegal possession as the purpose" is the key subjective element to identify malicious overdraft, which must be judged synthetically by certain objective behavior and other factors. The malicious overdraft cardholder should be limited to "legal cardholder", but when the "legitimacy" qualification is defective, it should be analyzed concretely. This paper mainly discusses two kinds of cases: one is the identification of malicious overdraft by fraudulent credit card, the other is the identification of malicious overdraft by borrowing other's credit card. The third part is the analysis of objective elements of malicious overdraft crime. "still not returned after card issuing bank collection" is the objective requirement to identify malicious overdraft, the effective form of collection, the time of effective collection and the effect of partial repayment on the effectiveness of collection. To clarify the interest on the amount of malicious overdraft is the key to correct conviction and sentencing. The fourth part is the malicious overdraft behavior to credit card fraud. Looking at the responsibility of the issuing bank behind the malicious overdraft, the non-standard credit card business and the lack of information sharing mechanism are the main reasons that induce the malicious overdraft to occur frequently. The state penalty right has been reduced to a powerful tool for card issuing banks to demand payment. The essential attribute of malicious overdraft is the abuse of credit rather than "fraud". There are many incongruities in malicious overdraft as credit card fraud, and the crime of malicious overdraft has realistic foundation and feasibility.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2127014
[Abstract]:The overdraft function of the credit card allows the cardholder to spend first and then repay within the credit line. With the development of the financial market, the credit card business is very popular in the society, but at the same time, the malicious overdraft crime cases are more and more. Therefore, how to effectively regulate such crimes and provide a good environment for the development of credit card business has always been the focus of criminal law research. The current criminal law recognizes malicious overdraft with the crime of credit card fraud, and the judicial interpretation further clarifies the subjective and objective elements of the malicious overdraft crime as well as the determination of the amount, but, In the face of the characteristics and complex situation of malicious overdraft cases, there are still many problems in the subjective and objective elements of malicious overdraft crimes, and there are some incoordination between criminal legislation and judicature. This article intends to make further analysis and research on the subjective and objective elements of malicious overdraft crime and the corresponding legislative and judicial interpretation, which is divided into four parts. The first part is a summary of malicious overdraft of credit card. There are some differences between the scope of "credit card" in financial field and criminal law field, so clearly defining the scope of "credit card" will help to understand the essence of malicious overdraft. Only by correctly understanding the "overdraft period" and "overdraft limit" of the credit card, can the malicious overdraft behavior be deeply analyzed from the criminal law. To distinguish malicious overdraft from bona fide overdraft requires a certain standard and a correct analysis path and method. The second part is the analysis of subjective elements of malicious overdraft crime. "taking illegal possession as the purpose" is the key subjective element to identify malicious overdraft, which must be judged synthetically by certain objective behavior and other factors. The malicious overdraft cardholder should be limited to "legal cardholder", but when the "legitimacy" qualification is defective, it should be analyzed concretely. This paper mainly discusses two kinds of cases: one is the identification of malicious overdraft by fraudulent credit card, the other is the identification of malicious overdraft by borrowing other's credit card. The third part is the analysis of objective elements of malicious overdraft crime. "still not returned after card issuing bank collection" is the objective requirement to identify malicious overdraft, the effective form of collection, the time of effective collection and the effect of partial repayment on the effectiveness of collection. To clarify the interest on the amount of malicious overdraft is the key to correct conviction and sentencing. The fourth part is the malicious overdraft behavior to credit card fraud. Looking at the responsibility of the issuing bank behind the malicious overdraft, the non-standard credit card business and the lack of information sharing mechanism are the main reasons that induce the malicious overdraft to occur frequently. The state penalty right has been reduced to a powerful tool for card issuing banks to demand payment. The essential attribute of malicious overdraft is the abuse of credit rather than "fraud". There are many incongruities in malicious overdraft as credit card fraud, and the crime of malicious overdraft has realistic foundation and feasibility.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
【参考文献】
相关期刊论文 前2条
1 游伟,肖晚祥;信用卡诈骗罪的理论界定与司法适用[J];人民检察;2001年02期
2 杨宏芹;林清红;朱铁军;;借用他人信用卡恶意透支的定性[J];人民司法;2013年12期
本文编号：2127014
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