Credit card of experience record share
Editor's note digs flying development of the technology as Internet IT and big data analysis, the crime that obstructive credit card manages happens from time to tome, but, because judicatory practice is medium,put to the understanding of bogus credit card and bogus blank credit card open to question, affect the accurate processing to crime. This period delibrate chooses typical case, emersion maintains a course, and invite expert undertakes commenting on, pay close attention to please.
Main delibrate problem:
◎ " bogus credit card " with " bogus blank credit card " divisional standard;
◎ " possess information of effective credit card " the evidence of divisional standard is maintained with the; that collect a letter
Whether are the credit card that ◎ illegal hold falsifies or blank credit card a requirement with credit card substance.
Hold to " possess information of effective credit card " standard
Hui Ping of Xue Amin Liu
Basic details of a case: 216 years on December 14, 15 daytime, cheng Mou of the accused person is below the circumstance that knows perfectly well place to hold credit card department to forge, for the debt inside detinue card, to some area office of engine of ATM of one transportation bank undertakes the paragraph is operated extraction, take successfully show a RMB 1000 yuan, among them 16 pieces of card are swallowed to get stuck by ATM machine. On December 15, cheng Mou is in afore-mentioned ground extraction a money to be seized on the spot by public security personnel, inside the portfolio that from its vade mecum tastes the abode that reach of short duration after additional hunt down card 9 pieces. Deduct among them information of 1 piece of faces blocking card and track information be identical, illative it is lawful credit card, card of case of experience of Cheng Mou illegal hold adds up to 24 pieces.
[argument]
The bank card cent of the experience of place of blame of management of obstructive credit card that criminal law provides the 177th times is bogus credit card and bogus blank credit card two kinds of case. According to procuratorate of top people court, top people " supervise criminal case about handling obstructive credit card specific application law the explanation of a certain number of problems " (next weighing " explanation " ) , illegal hold, carry two kinds of afore-mentioned credit card to have differ blame and standard of clue of measurement of penalty. The experience case credit card of cognizance hold is " forged credit card " or " forged blank credit card " , immediate impact adjudicates declare punishment.
[accusation and proof commit a crime]
On March 17, 2017, public security mechanism is suspected of obstructive credit card managing a blame to move with Cheng Mou send some area procuratorate to examine sue. After procuratorial work mechanism hears a case, respectively on May 2, go back complement will be investigated on July 17, public security mechanism is investigated at will complementing on August 9 end, move again send examine sue. Area procuratorate at of the same age on August 31 to sue. Of the same age on November 29, district court enters a judgement, 24 pieces of some hold of Cheng of the accused person in falsifying credit card, besides can take out 2 pieces of debt successfully, in proving odd card without sufficient evidence, write hold information blocking a person effectively, and 16 pieces of card are swallowed to get stuck by bank ATM machine, hold this 22 blank credit card that Zhang Wei falsifies accordingly, form obstructive credit card to manage a hardship and the amount is larger, sentence a set term of imprisonment one year 9 months, punish golden RMB 10 thousand yuan. Area procuratorate refuses to obey first instance court decision, will put forward counterappeal on December 8 at of the same age. After appellant Cheng Mou receives first instance to adjudicate, will put forward to appeal on December 4 at of the same age.
Counterappeal opinion. The VISA that forges card to be issued for abroad more gets stuck or Master gets stuck, but exterior blocking a side is multifarious, white, black have. And bogus credit card is not can do business operation, the card that eats off like ATM machine and do not have trade functional bogus gets stuck, to similar do not have essential factor of complete credit card falsify card, it is bogus credit card or forged blank credit card, controversy exists in practice. The course is examined, the credit card amount that one adjudgement did not hold hold of appellant Cheng Mou to forge definitely is huge, the department maintains fact, applicable law to have a mistake truly, reason of area procuratorate counterappeal is sufficient, give support. For tamp evidence foundation, undertake personnel complemented around controversy dot crucial evidence. It is hold information blocking a person effectively to decide whether experience case credit card is written, apply for professional orgnaization to have identification to experience case credit card. 2 it is to go to the Ceng Chi that it is a person has or had used forged credit card, already passed when case hair sell, move of buy in and sell at a profit is in to other, video of ATM machine monitoring and trade the other evidence enough such as the record proves once hold passes, OK plan the amount that enters illegal hold.
The court investigates level. Procuratorial work member book of read out counterappeal, 24 pieces of credit card departments that one adjudgement did not maintain hold of appellant Cheng Mou definitely falsify credit card, not agree with with case fact, basis " explain " the 2nd the 2nd section provision, knowing perfectly well is bogus credit card and hold, those who carry 10 pieces of above, ought to maintain for criminal law of one of the 177th the 1st section provision " the amount is huge " , fasten applicable law mistake. Appellant Cheng adjudicates the charge that hold, fact, evidence does not have demur some pair formerly, but think measurement of penalty is overweight.
Quote phase. Procuratorial work member to adminicle of judicial Shiming triplet, be the proof: that international of some credit card organizes Beijing delegate place to issue respectively? Zhang Han of? of apricot of of ㄆ of ligature of have illicit relations with has the data essential factor that corresponding credit card asks. Some information system (Shanghai) the proof: of limited company? Zhang Han of?6 of apricot of of ㄆ of ligature of have illicit relations with has news of corresponding credit card, have trading terms. Place of appraisal of some computer judicatory those who issue " book of judicatory appraisal opinion " : ? Zhang Yinhang of?4 of have illicit relations with gets stuck to all have news of the 2nd track.
Does paraclete put forward at 2 o'clock opinion: ? Emperor sets standard of relevant law of? of of of eye of Lan of miscellaneous Xuan pain or numbness caused by cold not regulation of proclaimed in writing, the main body that differentiates an organization is ambiguous, afore-mentioned triplet differentiate writ form, content each different, do not have legal evidence capacity, ought to give eliminate. 2 it is bogus credit card and bogus blank credit card do not answer pure it is a standard with whether keeping credit card information, the falsify credit card on a piece of whole sense ought to have consumption to pay, turn the function such as Zhang settle accounts, the card that is swallowed by ATM machine does not have complete credit card function of course, should not maintain for bogus credit card.
Judicial controversy phase. Procuratorial work member emphasized how specific maintain " keep information of effective credit card " . According to Chinese people bank " the bank blocks magnetism news format and use standard " regulation, bank card has 3 tracks commonly, all bank card must use the 2nd track, the 1st, whether are 3 tracks used set by hairpin orgnaization proper motion. The 2nd track regards exchange as the track, each hairpin orgnaization is with the 2nd track when undertaking information is exchanged discriminating mixing accurate, bank card number, period of efficacy and hairpin travel basically are above add secret data. Accordingly, credit card information of data of the 2nd track is complete can identify, can maintain for bogus credit card. As to whether make be extractioned actually showing waiting trading operate, have consumption to pay namely, credit, turn Zhang settle accounts all or partial function, when maintaining, need not consider. Experience case forges calorie of ATM machine 24 pieces to all can identify a credit card number, afore-mentioned appraisal also prove experience case credit card already kept credit card information, not be the credit card that forged blank credit card falsifies however. Cheng Mou knows perfectly well credit card of case of 24 pieces of experience is forge and hold, ought to hold number the amount is huge, adjudicate cognizance fact mistake, measurement of penalty is too light formerly, suggest 2 careful court gives correct. Paraclete puts forward, be based on impeach to be helpful for the principle of the accused person, be in maintaining is bogus credit card or existence of forged blank credit card when doubt, ought to make those who be helpful for the accused person is illative, namely illative the case that it is experience falsifies card is bogus blank credit card.
Adjudicative result. 2 careful court adopts counterappeal opinion, entered a judgement on August 9, 2018, the credit card that illegal hold of cognizance Cheng Mou falsifies 24 Zhang Ju amounts are huge, lawfully Cheng Mou of change the original sentence makes obstructive credit card manage a hardship, sentence a set term of imprisonment 4 years, punish golden RMB 50 thousand yuan.
[typical meaning]
About maintaining standard assurance. Distinguish in practice " bogus credit card " with " bogus blank credit card " basically have " enough does business " " possess information of effective credit card " " can trade actually operation " 3 kinds of standards, the author thinks the 2nd kind of standard provides rationality more. And specific maintain forge card to whether possess information of effective credit card, but according to ATM machine readable take falsify the data such as date blocking card to consult, also can apply for the appraisal orgnaization such as credit card organization to undertake the technology is differentiated when necessary, as to whether make be extractioned actually showing waiting trading operate, have consumption to pay namely, credit all or partial function, when maintaining, need not consider.
About maintaining evidential assurance. It is application when the technology is differentiated, answer to be a standard in order to block the organization of label above all, if track information and card face label are abhorrent, the card organization that displays with track information is a standard. Below the circumstance that does not have a label in card face, but first to bank orgnaization preliminary inquiry, the basis reads extraction track information place to belong to calorie of organization to undertake differentiating. 2 it is the technology that issues about blocking an organization each differentiates requirement and evidence to select letter issue, the author thinks, no matter be to have data essential factor, contain credit card information, or enough does business, or information of the 2nd track is complete, all explain substantially possessed information of effective credit card, can maintain for bogus credit card. 3 it is this kinds of case is not a requirement with credit card substance, some credit card are written through reading implement wait for the professional equipment that make card, can adapt repeatedly magnetism information. Be in not sequestered below the circumstance that falsifies card to entity, use record and the accused person to wait for evidence to prove for narrating through video of ATM machine monitoring, operation once hold passes, namely the social harm sex of behavior already came true, do not affect illegal hold maintain, can plan the amount that falsifies credit card into illegal hold.
(The author is Shanghai people procuratorate respectively inquisitor of assistant of inquisitor of lab of the first branch department, 2 try and punish)
Li Qing Dynasty forges credit card connotation to promote science to conviction measurement of penalty
Tian Hongjie
The key that credit card forges does not depend on itself of credit card medium forge, and depend on those who have the content of legal and significant information of substantial meaning forging, should have credit card only namely the illegal input of significant information, do not have on even if physics to it corresponding lawful and effective credit card medium namely hypostatic card exists, yi Ke is maintained for cognizance credit card.
The real function of bogus credit card and use effect how, do not produce an effect at forging the cognizance of credit card.
Current, as the development of science and technology, the crime that obstructive credit card manages is shown house is tall no less than posture, trade to credit card not only superintendency order of safety and finance constitutes grim challenge, and normative to criminal law judicatory is applicable also raised question of a lot of difficulty. Because forge the fountainhead that credit card is credit card bilk, the controversy with theory and consequently medium practice is mixed with bogus credit card especially distinguish and maintain of bogus blank credit card most intense, this case is comfortable routine of among them a model namely.
Although the form that credit card falsifies in practice is varied, but Baconian rise, nothing more than the following two kinds of: ? Emperor sads every ǖ of 7 Luan Pang is troubled by Lv of Chan of be good at of J of solid Chu ⒛ to owe every? of Pang of young of ㄖ garden brighting look up truly 2 it is illegal to credit card undertake period of efficacy of user Zhang date, full name, credit card wait for information input to play card illegally namely, as to the medium that is used at playing card illegally namely credit card, include blank to falsify the credit card, credit card that blank cannot use real credit card normally lawfully already, also include to use medium credit card normally. Between the blank credit card that falsifies consequently and bogus credit card after all what concerns, also become include obstructive credit card to manage blame and credit card crime of fraud inside credit card crime is maintained in must the problem of li Qing Dynasty.
To this, theoretic have the different view such as defend oneself of area of identical mediate a settlement. Among them, same say to think, the; of a kind of form that forges blank credit card to falsify credit card therefore is divisional say to advocate, bogus blank credit card is not bogus credit card, both have not, must try to distinguish clearly. As to divisional standard, have again " enough does business say " " have information of effective credit card to say " " can trade actually the operation says " wait for different view.
Actually, no matter obstructive credit card manages blame or credit card crime of fraud, belong to the category that administration commits a crime. Although have administration to violate behavior may not of the gender to have criminal to violate a gender certainly, but the standard is guaranteed mediumly in jurisprudence by criminal law fixed position and decide from this before buy administrative law is qualitative as mensurable as safeguard criminal law administration crime holds a mechanism knowable, the behavior of the illegal sex of administrative law of the buy before be not being had, have criminal impossibly to violate a gender. The essence of law beneficial enroach on of administrative criminality and essence violate source, the enroach on that the adjusts establish of sexual regulation place administration legislation of administrative law of the buy before depending on what its devote oneself to to ensure to criminal law concerns, and the first protection of administrative law of the buy before be opposite is regular namely " legal responsibility " of article disobey. Decide from this, the criminal law that administration commits a crime is applicable explanation, cannot only limit is constrained at oneself of criminal law article, want to follow the basic principle of criminal law oneself and ultimatum already however, administrative law of the buy before wanting to extend what devote oneself to safeguard to article of this criminal law in the extension of criminal law again of place establish before kind of essence of impact of buy administration legislation, illegal behavior thinks integratedly explanation. Otherwise, namely likely because be in inside criminal law say to oneself, and the illegal sex that gets on law of the buy before be not being had, the behavior of place protection maintains law of the buy before be even to commit a crime for penal.
Same, by active penal code one of the 177th obstructive credit card manage the regulation of crime of fraud of the 196th blame, credit card to discover not hard, afore-mentioned criminal law article devote oneself to to ensure before the finance that buy administrative law is concerned credit card superintends law, code. Base oneself upon hereat, the fundamental that integrates penal code discovers not hard, bogus credit card and bogus blank credit card, having clear and clear discriminative bound branch actually.
2011 " business of commercial bank credit card supervises administrative measure " (next weighing 2011 " method " ) the 7th specific provision, credit card is to show the record manages account blocking a person pertinent information, have a bank to award a letter to the forehead is spent and overdraw function, provide the of all kinds medium that relevant bank serves to hold calorie of person. Although complete 2004 compatriots is big standing committee " about < criminal law of People's Republic of China > the explanation that provides about credit card " the extension of the credit card that sets is far than 2011 " method " wide extensive, include already 2011 " method " in have credit function to overdraw namely functional credit card, include to have consumption to pay only again, access cash function borrow write down get stuck and borrow write down card, but the hinge that its produce a bank to block legal effectiveness all depends on, "The record manages account blocking a person pertinent information " .
Decide from this, without the itself of credit card medium of legal and significant information, do not have what commerce or finance trade to trade the consumption that the monetary function of equivalent perhaps derives from this overdraws wait for financial tool function. So, falsify credit card cannot with forge monetary equate. Of the money forge substandard of the pattern that should copy real money only, style to watch a form to undertake bogus be accusinged namely finishing, and the key that credit card forges does not depend on itself of credit card medium forge, and depend on those who have the content of legal and significant information of substantial meaning forging. Should have credit card only the illegal input of significant information, do not have on even if physics to it corresponding lawful and effective credit card medium namely hypostatic card exists, yi Ke is maintained for cognizance credit card. The credit card on net of no less than pays, want to significant credit card information can be finished only, the credit card medium that does not beg physical sex must subsistent beside at drawee. Accordingly, the credit card medium that forges on the exterior merely, be just as those who forge bank old hall to place to take the used blank deposit receipt that does not have any account information content at will for the person, the disbursement that both neither has financial evidence settle accounts function, also cannot use actually at commerce or finance to trade activity. Be in consequently substantially, falsify blank credit card real blame falsifies credit card, the key of both distinction depends on whether having the input of information of effective credit card.
Nevertheless, falsify the blank credit card that has lawful and effective credit card feature and demand, formed to order of credit card government not only encroach, and often be to forge credit card and even use bogus credit card to undertake credit card bilk the preliminary behavior that bilk of other perhaps finance commits a crime. Of credit card of together with blank forge a department " technical work " , ordinary common people does it hard, make 9 pieces of blank credit card by hand so in order to view and admire play, its person theres is no lack of in real life, but illegal hold, carry amount of bogus blank credit card bigger, show be not the intent of normal society life that stems from ordinary common people, if evidential enough proves its plan tool, production requirement to carry out credit card bilk, namely the preliminary behavior with credit card crime of fraud is qualitative below the circumstance of the actual use that handle; and proves behavior person hard in evidence, yi Ke is illative what have order of obstructive credit card for the person all right is subjective and intended, talk thereby manage a hardship with obstructive credit card. because such, penal code the 177th one of will forge credit card and falsify blank credit card paratactic regulation at the 1st in, already declare publicly both and be expert at the distinction on the condition that it is appearance and content, the collective illegal essence that demonstrated form of shape of two kinds of different behavior again impares namely the law beneficial enroach on of credit card superintendency order is substaintial. In the meantime, penal code asks the 177th times to forge blank credit card to must reach the level with larger amount, and to falsifying credit card, do not have this specific limitation, came true to falsify blank credit card thereby the independence of this one preliminary behavior finalizes the design change, with close the arm of the law.
Use efficiency actually as to bogus credit card, whether must all ready or the function that have credit card partly, just can maintain with bogus credit card, pay no attention to in place. Because, the hinge that function of credit card finance produces consists credit card account of significant information have actually. The credit card with lawful and effective even if, because the bank is right what credit card holds credence blocking a person to evaluate is different reach its trends to adjust change, freeze thereby and even close the share that cancels place of the person that hold card to hold credit card all even function. For example, 2001 " safety of combination of net of bank card couplet is normative " system of stop payment list mixes the 7.1.1 credit card that set with 7.1.2 undesirable construction of system of the person that hold card reachs his corresponding compasses makes sequential provision. So, the real function of bogus credit card and use effect how, do not produce an effect at forging the cognizance of credit card.
Of course, no matter be of bogus credit card or forged blank credit card,maintain, the applicable explanation of afore-mentioned criminal law standards is the tangible level that judicatory maintains only, the key that its fulfil returns those who depend on relevant evidence to collect, examine and of relevant fact maintain. This also is counsel for the defence the point that defends in the another exert oneself in careful of this case front courtyard. According to the specific requirement of criminal procedural law, appraisal opinion must issue lawfully by the appraiser that has appraisal aptitude, just have evidential effectiveness. Consequently this case place of appraisal of some computer judicatory issue " book of judicatory appraisal opinion " belong to appraisal opinion, as to international of some credit card constituent Beijing delegate manages system of He Mou information (Shanghai) limited company is respective issued proof, belong to opinion of appraisal of book card and rather than actually. Want to accord with the requirement of book card only, can regard this case fact as cognizance evidence, whether to agree in writ formally and appraisal opinion as to its, do not affect book card to serve as the cognizance of evidential effectiveness and case fact.
In addition, to " the principle that is based on impeach to be helpful for the accused person, be in maintaining is bogus credit card or existence of forged blank credit card when doubt, ought to make those who be helpful for the accused person is illative, namely illative the case that it is experience falsifies card is bogus blank credit card " view, the author has different view. As the basic principle of criminal law, criminal law decides the blame principle and principle of equality of everybody of applicable criminal law, the cornerstone that proper sex is able to implement since legislation, also be the iron that applicable criminal law must scrupulously abide by judicatory criterion. The big charter that rights of man of person of the accused of criminal law since ensures, also be the society that the injured party and social community close right increase guards bodyguard. In way of punishment fact system applicable reach its explanation to go up, the accused does not have the give special treatment of the law that surmounts social community and the injured party and privilege, but go up in factual cognizance, impeach is helpful for since of the accused person contemporary criminal procedural law is innocent and illative the carry out of the principle goes, it is the logical of course conclusion of the regulation of criminal lawsuit evidence that eliminates reasonable suspicion. So, impeach is helpful for the accused person is the principle that evidence is examined and the fact maintains, be not criminal law the principle of applicable explanation.
(The author is adviser of professor of research center of science of law of criminal of Chinese people university, doctoral student)
