No matter be the issue that poses to credit card in criminal case or civil dispute perhaps commits a crime,have a lot of, so is the criminal law provision that makes crime for credit card of illegal hold other to be being maintained in criminal case how set? Popularize relevant law content at this point about office of attorney of ferry of all day long of river of this kind of problem, the hope has certain help to you.
The meeting below what circumstance is maintained to be credit card of illegal hold other to make crime - set according to our country criminal law, "Credit card of illegal hold other, the amount is larger " , form obstructive credit card to manage a hardship. Top people procuratorate, the Ministry of Public Security " about public security mechanism administer criminal case put on record seeks the regulation that appeals to a standard (2) " the 13rd regulation, "Credit card of illegal hold other, quantitative accumulative total is in of 5 pieces of above " , ought to according to criminal law the 177th one of with blame of management of obstructive credit card put on record is chased after appeal to. In judicatory practice, to credit card of illegal hold other " illegal sex " judgement existence controversy. The viewpoint thinks, want hold not to belong to his credit card only, it is illegal hold; Also the viewpoint thinks, the illegal sex of credit card of illegal hold other is judged, ought to consult in the hold such as illegal hold drugs, firearms crime " illegal sex " judgement, ought to be namely through buying, theft, loot, rob, the credit card that the illegal means such as bilk obtains.
Ought to say, crime is subjective and malign the unity with objective harm, to " credit card of illegal hold other " in forming obstructive credit card to manage order hardship " illegal hold " judgement, also should abide by advocate the criminal law principle that integrates objectively. Namely, to credit card of illegal hold other " illegal sex " maintain, ought to from subjective and objective two dimension are spent undertake deciding, and ought to undertake distinguishing treatment to different behavior type, with making cognizance result accords with a blame photograph of punishment of legal, crime gets used to punishment wait for criminal law principle and social value sense.
One, subjective go up the intention that has illegal crime: Criminality is to be in subjective and intended or error dominates the action below. Credit card of illegal hold other forms obstructive credit card to manage a hardship, requirement behavior person is subjective on must have crime intended. Basically include 3 fields:
Above all, behavior person needs to know perfectly well his to hold the credit card that has a plenty of other. Namely, what realise him hold for the person all right is credit card, if do not know him hold the credit card of other, what perhaps do not know him hold is credit card, cannot make this crime. Be like, after behavior person stole the purse of the injured party, did not discover purse inside there is many credit card in the bag, behavior person puts purse in abode to have illegal hold; Perhaps discovered to there is many card in purse, but did not discern carefully, consider as member card, public transportation card to wait. Below these two kinds of circumstances, all cannot hold behavior person subjective on existence penal is known perfectly well, maintain its behavior to form obstructive credit card to manage a hardship then.
Next, behavior person knows perfectly well hold other credit card the illegal sex of itself of this one behavior. Blame of management of obstructive credit card serves as legal make, be as the development of economic society generation, its violate a gender to make unlike nature. To whether making the judgement of this blame, cannot applicable " do not know law unavoidable duty " judgement is logistic, need behavior person to be not allowed to have acknowledge by legal place to behavior itself however, no less than has scholastic place talk, "To intended legal make, establish the formal level that should ask behavior person violates a gender to criminal intentionally to be known somewhat, the behavior that asks behavior person realises him namely by before buy law itself namely administrative law place prohibits " . Accordingly, form this blame to need behavior person subjective on have illegal sex to know, be in for the person all right namely subjective on know perfectly well hold other credit card itself of this one behavior breaks the law, it is legal place unallowed. If go not to know for the person the act of hold other credit card violates, the behavior of credit card of other of hold of person of unfavorable cognizance action makes this crime, after all, for theory of accessory punishment doctrine and objective understanding rule, behavior person realizes the quality of own behavior only, the harm result that ability realises to him behavior place arises.
Again, the credit card that needs to have benefit to use hold for the person all right undertakes illegal or the intent of criminality. Although go to know perfectly well oneself to hold the credit card that has a plenty of other for the person, unfavorable also entirely is maintained for crime, the credit card that asks behavior person has the advantageous hold that use place however undertakes illegal guilty intent. No less than has scholastic place to point out, "The key that bank card commits a crime depends on using a bank illegally to get stuck " , use illegally can cause ill will to overdraw, or make the bilk of behavior person phone, tool that washs the illegal crime such as money, bribery, evade taxes. If be general hold only and did not use the end that commits a crime at breaking the law, won't cause to financial administration order damage, won't encroach the law benefit that destroys protection of place of blame of financial administration order namely.
2, go up objectively get credit card not to have lawful sex
Right " hold " undertake behavior type differentiates, can divide for " lawful hold " " violate compasses hold " " illegal hold " 3 administrative levels. Of the first administrative levels " lawful hold " , go to have legal basis for credit card of person hold other namely, be like, behavior person is based on entrust accredit, because manage,be not had and keep temporarily, perhaps be based on donative, assure wait for civil relation and hold other credit card. Right now, credit card of other of behavior person hold is lawful, the fashion shift of hold is nonexistent illegal sex. Here the circumstance falls, although go to have the end that uses illegally for the person, the hold action that also cannot hold behavior person is belonged to " credit card of illegal hold other " , manage a blame to undertake condemnatory with obstructive credit card then. Because, "Anybody does not suffer punishment because of the thought " this one old law maxim already was approbated by institute of state of world great majority, also be the general principle of criminal law of state of law of current world democracy. But, the hold below this kind of circumstance -- the aim that implements illegal crime through arising to use credit card after lawful way hold, can become the provision that uses credit card to carry out other crime makes or execute make. If become ill will to overdraw model the provision of the credit card crime of fraud, crime that wash money, bribery crime makes, or become those who prepare executive terror blame to execute make.
Of the 2nd administrative levels " violate compasses hold " , go namely although credit card of humanness hold other does not have legal basis, but not be to pass the way of illegal crime to acquire hold, it is interpose a kind of hold between lawful hold and illegal hold. Be like, behavior person through buying hold, or through picking up gotten way hold. To through buying hold other credit card, basis " credit card business runs way " the 36th regulation, credit card is confined to hold calorie of him person to use legally, must not rent or subtenancy credit card and its account. The basis is lifted light with bright heavy principle, rental, subtenancy is not allowed, so offerring credit card is more be not allowed, although buy, is the real credit card that other offers of one's own accord, as a result of what sell behavior illegimate, buy a person to cannot obtain lawful hold basis. To carrying the credit card that collects so that the way obtains, the basis is so undeserved that the basis benefit ought to return returned civil code principle, pick up so that the person ought to return return lose a person, accordingly, the credit card that hold collects also does not have legal hold basis. To violating the condition of credit card of compasses hold other for, although its win the method way of credit card,be illegimate, but the action that can not hold behavior person according to this forms obstructive credit card to manage a hardship, still need behavior person to have the end that uses illegally.
Of the 3rd administrative levels " illegal hold " , go namely credit card of humanness hold other is to pass the means of active illegal crime to obtain. Be like, behavior person passes bilk, theft, loot, rob the method that waits for illegal crime, obtain the credit card with other larger amount and hold. Below this kind of circumstance, do not need to find out behavior person subjective on have the end that uses illegally, can use criminal person of illative cognizance behavior is subjective on have the end that uses illegally, namely, use the principle with illative criminal to solve behavior person subjective on the subjective and intended problem that has illegal crime. Because, the premise behavior that its obtain credit card is illegal criminality, it is illicit of criminal law place. After obtaining other credit card through afore-mentioned methods the circumstance of hold of law of and rather than falls, can think " evildoing is complemental and baleful " , namely malign behavior itself the existence that enough reveals behavior person ill will, the reality that can maintain the credit card that carries hold of this kinds of method to have disturbed finance order is dangerous, and need not prove its are subjective further on have the end that uses illegally. Academic group has a scholar early to point out: "Although obtain the behavior of credit card to break the law not to decide whether hold behavior breaks the law directly, but break the law after obtaining other credit card and of hold, its hold behavior has illegal sex. " after all, "Figure by the result intended " this one law is gnomic, in instantly still by extensive and applicable and producing its function value ceaselessly.
On put together, blame of management of obstructive credit card and other crime are same, it is subjective and malign the unity with objective harm, it is subjective and illegal as fit as objective and illegal knot, both be short of one cannot. The law benefit that blame of management of obstructive credit card protects is normal financial order, accordingly, to obtaining other credit card legally character, because obtain behavior lawful, no matter go to whether have benefit to use credit card for the person,undertake illegal guilty intent so, the action that cannot hold behavior person forms obstructive credit card to manage a hardship; Make as to the provision that whether makes other crime or execute make, answer to be judged separately according to evidence. Below the condition that violates credit card of compasses hold other, form obstructive credit card to manage a hardship, person of need proof behavior is had use the intent that its hold some credit card to undertake illegal crime. Below the circumstance of credit card of illegal hold other, should lawfully reasonable use criminal is illative, illative its have the end that uses illegally, if cannot put forward reasonable and exculpatory, can maintain its to form obstructive credit card to manage a hardship.
Above issues the introduction of the relevant content that can be maintained be credit card of illegal hold other to make crime about what circumstance namely, the legal content that if want,seeks advice from more criminal respects can land Www.jsjc-tj.com to perhaps be dialed 18522157017 undertake with the lawyer online seek advice.
