恶意透支型信用卡诈骗罪的客观处罚条件——《刑法》第196条第2款的理解与适用

Objective Conditions for the Punishment of Malicious Overdrawing of Credit Card Fraud : The Understanding and Application of Article 196(2) of the Criminal Law

司法实践不当扩大恶意透支型信用卡诈骗罪的处罚范围的一个重要原因,是没有正确理解《刑法》第196条第2款所规定的"经发卡银行催收后仍不归还"的体系地位;"经发卡银行催收仍不归还"既不是恶意透支型信用卡诈骗罪的构成要件要素与责任要素,也不是仅具有语感意义,而是客观处罚条件。恶意透支时具有非法占有目的,但发卡银行催收后予以归还的,虽然成立信用卡诈骗罪,但因为缺乏客观处罚条件,不能给予刑罚处罚;透支后产生不归还的意思因而未归还的,以及透支后由于客观原因不能归还的,原本就不成立信用卡诈骗罪。恶意透支后,在提起公诉前或者一审判决前由持卡人或者保证人全部归还的,应当不起诉或者应当免予刑事处罚;客观处罚条件的法律效果适用于所有的犯罪人,而不应当将"曾因信用卡诈骗受过两次以上处罚的"行为人排除在外。

Judicial practices have unduly expanded the punishment scope of malicious overdrawing of credit card fraud. One main reason for this expansion is the condition of Article 196(2),which stipulates"one refuses to repay the overdrawn amount after the bank claims the collection",has not been understood properly within the system of the Criminal Law. "One refuses to repay the overdrawn amount after the bank claims the collection"neither is one of the constitutional elements of malicious overdrawing of the crime of credit card fraud,nor is here only for linguistic meaning. Instead,it is an objective condition for punishment. If anyone maliciously overdraws with the purpose of illegal possession,but repays the overdrawn amount after the bank claims the collection,even though his act establishes the crime of credit card fraud,he cannot be punished due to the lack of objective condition for punishment. If anyone overdraws without the purpose of illegal possession,that is,he only has malicious intention after he overdraws or he refuses to repay the overdrawn amount due to his objective economic conditions,his act cannot establish the crime of credit card fraud in the first place. If anyone maliciously withdraws with the purpose of illegal possession,but he or his guarantor repays the entire overdrawn amount before he is prosecuted or sentenced for the first trial,he should not be prosecuted or should be exempted from punishment. The legal effect of objective conditions for punishment shall apply to all the criminals who commit this crime. Those have been punished more than twice for the crime of credit card fraud shall not be excluded out of this legal benefit.