伪造信用卡犯罪中的伪造行为内涵与对象研究

Research on the Connotation and Object of Forgery in the Crime of Forging Credit Cards

刑法中伪造信用卡犯罪中的伪造不仅包括仿制其物理外观的形式伪造,还应包括将权利人信息写入磁条介质、芯片等的内容伪造。作为伪造对象的信用卡应当是具有物理载体的实体卡片,事实上不存在对虚拟信用卡的伪造。以虚假身份骗领无对应实体卡的虚拟信用卡应视为妨害信用卡管理罪中的骗领信用卡行为;利用权利人既有实体卡信息,复制虚拟信用卡的行为系对他人信用卡信息资料的非法使用而非伪造。有关伪造信用卡犯罪刑法规定的立法原意并不包含伪造空白信用卡,伪造空白信用卡具有严重的社会危害性,理应将其纳入刑法规制范围,以保持与妨害信用卡管理罪刑法规定的协调。不能通过司法解释改变立法原意,现行刑法中伪造信用卡犯罪的伪造含义应有相应的调整。

In criminal law,forgery in the crime of forging credit cards includes not only forging the form of its physical appearance,but also forging the content by writing the information of the creditor into the magstripe media or the chip,etc.As the object of forgery,the credit card should be a substantial card with physical carrier.In fact,there is no forgery of a virtual credit card.To fraudulently obtain a virtual credit card without a corresponding physical card shall be regarded as an act of fraudulently obtaining a credit card in the crime of obstructing credit card management;The act of copying a virtual card by taking advantage of the oblige's existing physical card information is the illegal use of others'credit card information rather than forging.The original legislative intent to criminalize the forgery of credit cards in the criminal law does not include the criminalization of the forgery of blank credit cards,which,however,has serious social harm and should be regulated by the criminal law,so as to maintain the coordination with the criminal regulation on the crime of obstructing the management of credit card.The judicial interpretation couldn't be used to change the legislative intent.The connation of forgery in the crime of forging credit cards in the present criminal law should be changed accordingly.