论买卖银行卡犯罪的罪名适用

On the Application of the Crime for the Transaction of other People’s Bank Cards

随着我国“断卡”行动的开展,一大批涉银行卡犯罪的嫌疑人纷纷落网。在司法实践中,对于单纯实施买卖他人银行卡的行为,到底应该认定为妨害信用卡管理罪,还是收买、非法提供信用卡信息罪,不同司法机关的做法并不相同。这种同案不同判的做法已经严重影响了国家法秩序的统一和司法权威性,也不利于实现刑罚的公正性。从我国《刑法》增设这两个罪的立法背景和立法目的来看,立法者是严格区分信用卡和信用卡信息资料的,前者更具有法定犯的性质,而后者则包含更多的自然犯性质。买卖他人自愿出售的信用卡及配套信息资料中的信息资料并不是收买、非法提供信用卡信息罪中的信息资料,而是卡主知情同意后做出的处分结果,并没有侵犯卡主对信用卡信息资料的专用权、自决权以及公民个人隐私权。因此,基于自然犯与法定犯有别的原则,将该行为认定为妨害信用卡管理罪更符合刑法教义学原理,更具有妥当性与合理性,更有利于实现罪责刑相适应原则。

With the“card-breaking”action nationwide,a large number of suspects involved in bank card crimes have been arrested.In judicial practice,different judicial organs do not have the same approach for the same type of cases of buying and selling other people’s bank cards:some identified it as the crime of obstructing credit card management,and some the crime of buying and illegally providing credit card information.This practice of different sentences in the same case has seriously affected the unity of the national law order and judicial authority,and is not conducive to the realization of the fairness of the penalty.From the legislative background and the legislative purpose of adding these two crimes in China’s Criminal Law,the legislator strictly distinguishes between credit cards and credit card information data,with the former having more of the nature of a statutory offense and the latter containing more of the nature of a natural offense.The sale of the credit card and the accompanying information data voluntarily sold by others is not the information data in the crime of buying or illegally providing credit card information,but the result of the disposal of the card owner’s informed consent,which does not violate the card owner’s exclusive right to credit card information,the right to self-determination and the privacy of citizens.Therefore,based on the principle of distinction between natural and legal offenses,the act is considered as the crime of obstructing credit card management,which is more in line with the doctrinal principles of criminal law,more appropriate and reasonable,and more conducive to the realization of the principle of compatibility between crime and punishment.