Malicious overdraft constitutes credit card fraud scam amount including interest

1. Malicious overdraft constitutes credit card fraud

On August 17, 2012, the defendant Zhang Moumou used his Peony Credit Card with the card number of 451810××××××××× from Yiliang Industrial and Commercial Bank to sell a Wrigley board opposite the Building Materials City of Huihui Village, Yiliang County. In the bathroom store, a virtual transaction was used to collect 43,000 yuan of cash on the POS machine for repayment of debts. After repayment of 13,800 yuan on October 25, 2012, the overdraft payment has been outstanding, and the card has been used for overdraft until 2012. On November 4th, the card credit limit was overdraft, and the total overdraft principal was 49,009.57 yuan. After the defendant Zhang Moumou changed his contact number and address due to the inability to repay the overdraft, the ICBC's repeated dunning failed. As of November 1, 2013, the defendant Zhang Moumou’s overdraft payment has a total interest of 63,301.45 yuan. On January 10, 2014, the defendant Zhang Moumou took the initiative to return to the case and made a truthful confession. From January to February 2014, Zhang Moumou repaid the credit card principal, interest and late payment fees of Yiliang Industrial and Commercial Bank.

2. Whether the amount of fraud includes interest

The focus of this case is whether the interest generated by Zhang’s malicious overdraft credit card is included in the amount of crime.

Regarding the determination of the amount of malicious overdraft in the crime of credit card fraud, the Supreme People’s Court and the Supreme People’s Procuratorate promulgated in 2009 the “Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Credit Card Management”, the amount of malicious overdraft does not include compound interest. Fees charged by the issuing bank, such as late payment fees and handling fees. The implementation of the judicial interpretation clearly excludes the disputed compound interest, late payment fee, handling fee and other expenses in judicial practice, but the provision does not clearly indicate whether the amount of malicious overdraft includes the interest generated by the overdraft, so that the judicial practice There is a big difference in whether the interest generated by the overdraft principal can be included in the amount of fraud. Individuals believe that the interest generated by the malicious overdraft credit card should not be included in the amount of the crime to be identified. The analysis is as follows:

In nature, credit card bank interest performance is calculated value, with uncertainty. In essence, interest belongs to the suffocation of the principal, but interest and principal are not accompanied by each other. After the cardholder of the credit card has made overdraft consumption, if the full overdraft principal is repaid in accordance with the interest-free repayment period stipulated by the issuing bank, no interest will be generated; however, if the interest-free repayment period specified by the issuing bank is not If the repayment of the principal of the overdraft is repaid or fully repaid, the bank will charge the corresponding interest.

From the crime object, credit card "bank interest" can not be the object of credit card fraud. In criminal legal relationships, credit card fraud is a property crime for the purpose of illegal possession. "Interest" is for the defendant because it is a kind of computing property and cannot be the object of fraud, any fraudulent crime, It is only the principal that is paid out through the credit card, so that the defendant is responsible for the interests of the victims who do not possess and do not necessarily exist when they act, and does not conform to the fair concept of the rule of law.

The credit card characteristics determine that the defendant did not have a criminal intention of "unlawful possession" for bank interest. The defendant’s malicious overdraft is only for the principal borrowed by the bank; as for the bank interest calculated by the bank based on the credit card settlement record, if the borrower repays the loan on time, no interest is charged; only the interest is calculated after overdue payment, therefore, Interest is uncertain, and the defendant subjectively has no subjective intention to “interest possession” for interest on the bank.

From the legal requirements, credit card judicial interpretation of the amount of fraud on malicious overdraft, the provisions do not include compound interest, late fees, handling fees and other card-issuing banks. Judicial interpretation excludes compound interest, late payment fees, and formalities. It uses an "equal" word. It is a combination of enumeration and generalization. From the perspective of cultural interpretation, it should be understood as excluding interest, and it is analyzed from the "favorable to the accused principle". Nor should it be included in the amount of fraud.

When determining the amount, the conviction plot and the sentencing circumstances should be distinguished. The principal amount of malicious overdraft is the conviction plot of credit card fraud. The interest generated by malicious overdraft is a crime-related circumstance and should be evaluated as a sentencing case. At the same time, according to the provisions of Article 36 of the Criminal Law, the victim is caused by criminal acts. In case of economic losses, criminals shall be given criminal penalties in addition to the law, and shall be compensated for economic losses according to the circumstances. If the incidental civil action cannot be filed, a separate civil action may be filed and protected by civil law.

This is a brief introduction about whether a malicious overdraft constitutes a credit card fraud, whether the amount of fraud includes interest, and if you have other questions, you are welcome to consult our professional lawyers.