恶意透支型信用卡诈骗犯罪及适用法律问题探讨

Research on Crime of Credit Card Fraud and its Legal Rules

随着信用卡产业的高速发展,信用卡诈骗犯罪也日趋增多。我国作为全球新兴的信用卡市场,各种信用卡诈骗犯罪近年来也呈现出快速增长的趋势,严重扰乱了我国的信用卡管理秩序,同时也危害了广大持卡人的财产安全。我国刑法第196条及刑法(修正案五)对信用卡诈骗犯罪作出了相关规定,2009年最高人民法院和最高人民检察院联合出台的《关于办理妨害信用卡管理刑事案件具体应用法律若干问题的解释》对信用卡诈骗犯罪处罚又做出了进一步的补充。但是,随着信用卡诈骗犯罪形式的不断翻新,目前关于信用卡诈骗犯罪的刑法规制,仍然不能满足司法实践的需要。在定罪量刑中司法机关时常会陷入困境,在刑法理论研究领域中仍有诸多争议问题值得研究。

With the rapid development of the credit cards industry, the risk in this field has become a prominent issue and consequently the crimes of credit cards are also on the rise. Furthermore as an emerging market for credit cards, such kind of crimes disturbs the administration of credit cards, affect the development of our credit cards industry and impair the safety of the credit-card holders＇ property. Relevant provisions on the crimes of credit cards have been stipulated in Article 196, Criminal Law of the People＇s Republic of China and in the 5th Amendment to the Criminal Law of the People＇s Republic of China. In 2009, further amendments and supplements have been made based on the former legislation in Interpretation of the Supreme People＇s Court and the Supreme People＇s Procuratorate of Several Issues concerning the Specific Application of Law in the Handling of Cases of Crimes Disturbing the Administration of Credit Cards （herein after referred to as the Interpretation of the Supreme People＇s Court and the Supreme People＇s Procuratorate）. The above-mentioned legislation on credit cards has provided a comprehensive guiding for our legal practice. However, with the continuous change of the form of such crimes, the current legislation has not been able to fulfill the needs of the legal practice. The judicial authorities are often stuck in the problems of the measurement of punishments for such crimes. Therefore, there are still many controversial issues in the field of the theoretical criminal laws and regulations that need to be brought to our attention and made further researches on.