Article original title: " front courtyard of careful of punishment of attention Piao highest courtyard: Overdraw credit card is used at managing and insolvent, do not make crime! "
"Urge twice receive more than 3 months to be not returned " it is ill will overdraws model the requirement and rather than that credit card crime of fraud establishs is sufficient condition
One, basic details of a case
Guangzhou city jumps over court of beautiful division people to find out via cognizance: 2 brother invest Liang Baoquan of the accused person, Liang Bo art jointly 2 industries of management Guangzhou city. In April 2013, after two people discuss, with bridge Bo Yi's name is in China branch of Guangzhou of smooth big bank jumps over beautiful subbranch of a bank to handle a piece of credit card. Of the same age rose on May 17, two people use this credit card to undertake overdrawing consumptive jointly and the management that basically is used at 2 afore-mentioned enterprises. On August 18, 2014, 2 people hold this calories to overdraw for the last time consume 13000 yuan of RMBs.
Of the same age on October 31, 2 people turn to this calories Zhang reimbursement RMB 40000 yuan (the bank sets according to agreement preferential regard as remand the charge of the collection of hairpin travel place such as accrual, fine for delaying payment) , fail to continue to remand after debt, after 2 people exceed the time limit was not returned, classics bank for many times the phone is urged close, urge receive case to urge close, come to urge close to still did not remand. End on March 20, 2015, add up to count roughly to calculate a method according to the bank, still have overdraw fund capital reachs accrual 167411.6 yuan 9542.38 yuan did not remand.
On March 23, 2015, the bank reports a case to the security authorities. Guangzhou city jumps over court of beautiful division people to think, this case person of 2 the accused will overdraw the paragraph is used at production to manage, because manage the objective reason such as risk of not good at, market to cause,overdraw the paragraph cannot repay, subjective go up to be not had " detinue purpose " , its behavior does not form credit card bilk to commit a crime, it is average civil issue only. Guangzhou city jumps over immediately of procuratorate of beautiful division people written application recalls sue, forensic ruling allows recall sue.
2, main problem
1, behavior person is known perfectly well when managing occurrence difficulty overdraw credit card is brought about probably cannot repay, still overdraw use at managing, bring about finally cannot repay in time credit card debt, whether to belong to " know perfectly well do not have reimbursement ability and a large number of overdrawing, cannot remand " case?
2, if constitute credit card crime of fraud, in " receive more than 3 months to did not remand via urging " the money that remands before deadline at the expiration of one's term of office, whether can you deduct from inside overdrawing capital guilt amount?
3, juridical reason
1, behavior person will overdraw money is used at be being managed legally, because objective reason is brought about,cannot remand overdraw of money, cannot hold detinue end, do not make crime.
Criminal law sets the 196th times " ill will overdraws " model credit card crime of fraud must have two requirements at the same time: The first, subjective go up humanness " it is a purpose with detinue " ; The 2nd, went up objectively to be carried out for the person " surmount or exceed be restricted to overdraw " and " close to be not returned via be being urged twice " behavior. Two conditions are short of above one cannot. If hold calorie of person to do not have detinue purpose, just close not to remand via urging, not be ill will overdraws however kindness overdraws; If hold calorie of person to have detinue objective, but had remanded inside 3 months after closing via be being urged twice, because not agree with,make important document surely legally and cannot maintain overdraw for ill will.
Be opposite in solid Wu " detinue purpose " understanding still should hold to advocate the principle that integrates objectively, inspect behavior person integratedly explain get act, appear all sorts of elements such as a behavior, reimbursement behavior, the key inspects the element of face of the following tripartite:
The first, behavior person explain get credit card not to have the dummy fact, action that hides the fact from time to tome. This is to show behavior person is in explain when getting credit card, because be not accorded with explain understand a requirement or cannot get bigger overdraw the forehead, and forge a part to prove material, if property right of income proof, building proves to wait for fiction the material of ability of its financial condition, but its are basic the identity is belonged to solid, if the message such as full name, identity, address and census register data is real. If such, do not belong to criminal law the 196th the first of the first regulation " the identification that makes in order to false cheats the credit card that get " case, false identification is to show behavior person is complete the identity with fiction and false application data explain get credit card, make the bank cannot find the right person that hold card.
The 2nd, behavior person overdraws the utility of money. After obtaining fund to behavior person, the part is used at illegal activity, the part is used at what manage legally, if major fund is used at be being managed legally, expire cannot remand because manage the reason such as risk of not good at, market to cause,capital basically is, unfavorable maintain " it is a purpose with detinue " .
The 3rd, overdraw the reimbursement manner circumstance of person of the behavior when money and whether to have escape urge close. If go to be opposite after overdraw for the person,reimbursement deadline and reimbursement specified amount care far from, overdraw continuously consumption, close through changing the means such as phone, address to escape a bank to urge even, this kind overdraws only not the manner of reimbursement shows its have clear detinue purpose. (deep-sea fish does not explain especially: Of course, if overdraw when if do not have detinue objective, will overdraw the paragraph is used at be being managed legally, because of going bankrupt insolvent ability escapes after urge what close or change address, still belong to civil those who go up " escape debt " behavior. ) additional, if behavior person is urged in the bank after closing, have express actively, active perhaps reimbursement, perhaps explain reasonable not reimbursement reason, the plan that postpones reimbursement with bank agreement, can eliminate " detinue purpose " .
2, if the case constitutes credit card crime of fraud, after ill will overdraws, come urge the did not repay during 3 months completely money after closing to should regard countervail repayment of capital as gold and should give from inside guilty amount deduct.
Criminal legislation impact and civil law impact are disparate, the itself of property rights and interests that crime of protection of criminal legislation impact encroachs directly, the injured party of not direct protection is based on by guilty enroach on losing propagate breath.
On put together, first trial court thinks this case person of 2 the accused overdraws experience case credit card the paragraph is used at production to manage, because manage the objective reason such as risk of not good at, market to cause,overdraw the paragraph cannot repay, subjective go up to be not had " detinue purpose " , it is proper that its behavior does not form credit card bilk to commit a crime.
