Yesterday (November 28), the Supreme People's court and the Supreme People's Procuratorate issued the decision on Amending the interpretation on Several Issues concerning the specific application of law in handling criminal cases impairing the management of credit cards. Credit card is a tool for many modern people to borrow money, but there are also some malicious overdraft credit card, so how will be sentenced?
The original judicial interpretation on the malicious overdraft credit card fraud provisions were systematically revised. For example, the definition of "malicious overdraft" in the original explanation is modified to "two effective collections" by the issuing bank through "two collections". The standard of conviction and sentencing has also been raised, and the threshold for entering a crime has been raised from more than 10000 yuan to more than 50000 yuan.
The reporter noted that the revised interpretation partially revised the definition of "malicious overdraft" in Article 6 of the original interpretation. According to Article 6 of the original interpretation, if the cardholder overdrafts beyond the prescribed limit or within the prescribed time limit for the purpose of illegal possession, and still fails to return it after two collections by the issuing bank for more than three months, it shall be deemed as "malicious overdraft" as stipulated in Article 196 of the criminal law. On this basis, the "two collections" will be revised to "two effective collections" in the published interpretation.
At the same time, a new article is added in the interpretation, which makes specific provisions on what is "effective collection". That is to say, if the collection meets the following conditions at the same time, it shall be deemed as "effective collection": the collection shall be conducted after the overdraft exceeds the specified limit or time limit; the collection shall be conducted in a way that can confirm the receipt of the cardholder, except that the cardholder intentionally evades the collection; the interval between the two collections shall be at least three or ten days; the relevant provisions or agreements of the collection shall be met.
At the same time, the explanation makes clear that whether it is an effective collection shall be judged according to the telephone recording, information service record, letter service receipt, e-mail service record provided by the issuing bank, the signature of the cardholder or his family member and other original evidence materials of collection.
For the purpose of illegal possession or not, the interpretation makes clear that it should make a judgment based on the credit record of the cardholder, the ability and willingness to repay, the status of applying for and overdrawing the credit card, the purpose of overdrawn funds, the performance after overdrawn, and the reasons for failing to repay as required. The purpose of illegal possession shall not be determined solely on the basis of the fact that the cardholder fails to repay as required.
In addition, the interpretation raised the conviction and sentencing standards of the original malicious overdraft credit card fraud. The "large amount" stipulated in Article 196 of the criminal law is changed from the original "more than 10000 yuan but less than 100000 yuan" to "more than 50000 yuan but less than 500000 yuan"; the "large amount" is changed from the original "more than 100000 yuan but less than 1 million yuan" to "more than 500000 yuan but less than 5 million yuan"; In the case of "extremely large amount", the original provision of "more than 1 million yuan" was changed to "more than 5 million yuan".
The explanation also clarifies the principle of lenient treatment of malicious overdraft credit card fraud. It is emphasized that if the amount of malicious overdraft is relatively large, the overdraft may be returned in full before the public prosecution is initiated or if there are other minor circumstances, the overdraft may not be prosecuted; if the overdraft is returned in full before the judgment of first instance or if there are other minor circumstances, the overdraft may be exempted from criminal punishment. However, those who have been punished twice or more for credit card fraud are excluded.
The revised interpretation will come into force on December 1, 2018.