Supreme Court: 15 Rules for Adjudication of Credit Card Fraud

1. Stealing someone else's card opening email and activating the credit card is an act of fraudulently using another person's credit card, and if the amount is relatively large, it constitutes the crime of credit card fraud—— The gist of the case of Wang Lijun et al.'s credit card fraud case: Without the knowledge of the credit card applicant, taking advantage of the intercepted card opening letter and knowing the identity information of the applicant, he activated the credit card without permission, and swiped the card to withdraw cash or consume as the owner of the credit card, infringing on the property rights of others and also infringing on the state's management system for credit cards, disrupting the normal order of financial management, which is an act of fraudulent use of another person's credit card, constituting the crime of credit card fraud. Source: Criminal Trial Reference, Volume 93 (2013.4)

2. Fraudulently using the victim's information to bind another person's credit card overdraft to steal the money in the card, and the amount is relatively large, constitutes the crime of credit card fraud - Zhang Manxi Credit Card Fraud Case The gist of the case: The perpetrator's act of fraudulently using the victim's identity information and bank card information, overdrawing RMB to the victim's bank card through the consumption software in the victim's mobile phone, and then transferring the money from the bank card to the actor's own Alipay account through the victim's Alipay account, constitutes the crime of credit card fraud. Case No.: (2018) Jing 0117 Xing Chu No. 31 Source: Selected Cases of the People's Court.Total No. 124 (2018.6)

3. The bank agrees to repay the loan in installments, and if the cardholder refuses to repay, it still needs to meet the requirements of two collections for more than 3 months before it can be determined to be a malicious overdraft - the gist of the case of Liu Dongzhou's credit card fraud: If the bank agrees to repay the loan in installments to the cardholder, it shall be deemed to have reached a new agreement with the cardholder, and the repayment amount and repayment period shall be confirmed according to the specific circumstances after the installment. Thereafter, if the cardholder refuses to repay the loan, it still needs to meet the requirements of two collections for more than 3 months before it can be deemed to be a malicious overdraft. Case No.: (2016) Jing 0102 Xingchu No. 148 Source: Selected Cases of the People's Court.Total No. 124 (2018.6)

4. Collecting and using another person's credit card on behalf of others is an act of fraudulently using another person's credit card -- the gist of the case of Feng Xiaoxia and Li Taoji credit card fraud: Collecting another person's credit card on behalf of others and using it is an act of fraudulently using another person's credit card, which conforms to the common understanding of "fraudulent use" by ordinary people, but neither the Criminal Law of the mainland nor the relevant judicial interpretations regard the collection and use of another person's credit card as a typical act of fraudulently using another person's credit card. On the basis of an accurate understanding of the legislative spirit of the Criminal Law, this case makes a correct determination of the nature of receiving and using another person's credit card on behalf of others, and provides a typical example for determining the atypical fraudulent use of another person's credit card. Case No.: (2009) Qingyang Xing Chu Zi No. 55 Source: Selected Cases of the People's Court, Volume 75 (2011.1)

5. Overdrafts that have been returned before the occurrence of the case should not be included in the amount of the crime of credit card fraud -- The gist of the case of Xiao Zhimin's credit card fraud case: The perpetrator illegally obtained another person's credit card and changed the cardholder's information and frequently overdrafted, and it is not appropriate to determine that the defendant returned the money before the crime has the subjective purpose of illegal possession. When specifically determining the amount of the crime of fraud, the amount returned before the case is reported shall be deducted. Case No.: (2009) Si Xing Chu Zi No. 231 Source: Selected Cases of the People's Court, Volume 74 (2010.4)

6. Fraudulently obtaining other people's credit cards and passwords and using them, and the amount is relatively large, constitutes the crime of credit card fraud - Yan Chaofei's credit card fraud case The gist of this case: Although the perpetrator's act of using another person's bank card to withdraw money is secret compared to the cardholder, because the money in the card is in fact in the possession of the bank, not the cardholder, there is no problem of destroying the cardholder's possession of the money, and it does not constitute the crime of theft. Where the perpetrator undermines the bank's possession of the deposit in the card, and it is carried out by using another person's bank card, it is a situation of fraudulent use of another person's bank card, and shall be found to be the crime of credit card fraud. Case No.: (2017) Zhe 0304 Xingchu No. 447 Source: People's Justice Case 2019.2

7. Defaulting on credit card derivative loans does not constitute the crime of credit card fraud -- the gist of Wang Zhisheng's credit card fraud case: Loan products attached to credit cards are significantly different from ordinary credit card overdrafts, and should be recognized as a bank credit loan rather than a credit card overdraft. Disputes arising from the credit card holder's inability to repay the part of the loan should not be found to be a crime of credit card fraud, and should be resolved through civil litigation or pursued for criminal liability as a crime of loan fraud. Case No.: (2017) Jing 03 Xingzhong No. 416 Source: People's Justice Case 2018.35

8. The amount of malicious overdraft in the crime of credit card fraud shall not include the interest, handling fees, late fees and other fees charged by the card-issuing bank arising from the principal - the gist of the case of Guo Xin's credit card fraud: In the crime of credit card fraud, the amount of malicious overdraft shall be strictly in accordance with the provisions of the judicial interpretation, and the calculation of the amount refers to more than 3 months after the two collections by the card-issuing bank. The amount of principal that the cardholder refuses to return, or the amount of principal that has not yet been returned, is to be calculated on the basis of the difference between the actual amount of consumption (including cash withdrawals) of the credit card involved in the case before the public security organ files the case and the actual amount of repayment, and shall not include any fees charged by the card-issuing bank such as interest, handling fees, and late fees incurred on the principal. Case No.: (2016) Liao 01 Xingzhong No. 33 Source: People's Justice Case 2018.32

9. Infringement of citizens' property information and the commission of credit card fraud should be punished concurrently—The gist of the case of Su Yumi's infringement of citizens' personal information and credit card fraud: Illegally obtaining property information, including other people's credit card information, constitutes the crime of infringing on citizens' personal information, and using illegally obtained property information to commit credit card fraud, constituting the crime of credit card fraud, shall be punished concurrently. Case No.: (2018) Min 02 Xingzhong No. 168 Source: People's Justice Case 2018.32

10. The victim of the case of fraudulent credit card fraud with a copied counterfeit card is the bank, not the cardholder -- the gist of the case of Yang Chunguo's credit card fraud: In the case where the cardholder is not at fault, the bank's terminal equipment passes the verification and delivers the property because it cannot identify the counterfeit card, and the delivery is against the will of the cardholder, and the delivery is not the cardholder's property kept by the bank, but the bank's own property, so the object of infringement is the bank's property ownership, the bank is the victim, and the cardholder does not need to repay the loan. Case No.: (2016) Min 05 Xingzhong No. 1467 Source: People's Justice Case 2018.5

11. Where only part of the information is derived from a crime with a loose relationship after stealing bank card information, and it is difficult to find that it is an implicated offender, the punishment for several crimes should be combined - Gao Feng stealing credit card information, forging financial bills, The gist of the credit card fraud case: After the perpetrator stole a large amount of bank card information, only part of the information was used to make counterfeit cards or illegally cash out, but because the integrity of several acts has been actively dispersed by the perpetrators, this case lacks a clear dominant criminal intent, which makes it difficult to identify several acts as implicated offenders, and should choose to punish multiple crimes; Case No.: (2016) Hu 02 Xingzhong No. 1047 Source: People's Justice Case 2017.26

12. The fraudulent use of credit card fraud in the crime of credit card fraud should be judged from the source of the withdrawal right of the person withdrawing money -- the gist of the case of Chen Nanquan, Mou Hua, and Zheng Guocui in the credit card fraud case: The judgment of fraudulent use in the crime of credit card fraud cannot be mechanically based on whether the withdrawer and the actual cardholder are consistent, and if it is considered that the inconsistency constitutes fraudulent use. The act of obtaining the authorization of the actual cardholder and then withdrawing money through fraudulent acts should be recognized as general fraud, and the illegal withdrawal of funds without the authorization of the real cardholder should still be defined as the crime of credit card fraud. Case No.: (2015) Foshun Fa Xing Chu Zi No. 213 Source: People's Justice Case 2016.35

13. If the cardholder partially repays the loan after the bank collects it, it does not affect the bank's effectiveness in collecting the unpaid part of the arrears, and the partially returned amount shall be deducted from the amount of the crime - the gist of the case of Jinzhuol credit card fraud: One of the objective elements of the crime of malicious overdraft credit card fraud is that "the card issuing bank does not return it for more than 3 months after two collections". If the cardholder repays part of the outstanding amount after the bank collects the partial amount of the outstanding amount, such partial repayment will not affect the effectiveness of the bank's collection of the unpaid part of the outstanding amount. However, the bank's collection effect on the returned part ends when the purpose of collection is achieved, and the amount of this part shall be deducted from the amount of the crime. Case No.: (2012) Hu Yi Zhong Xing Zhong Zi No. 76 Source: People's Justice Case 2012.16

14. The applicant borrowed a credit card without criminal intent and only punished the actual user for the crime of malicious overdraft credit card fraud - Fan Zilei credit card fraud case The gist of the case: The criminal subject of the crime of malicious overdraft credit card fraud includes not only the applicant for the card, but also the actual user. If the applicant and the actual user have joint criminal intent and jointly commit the criminal act, they shall be punished as accomplices to the crime of credit card fraud; Case No.: (2012) Jing Xing Chu Zi No. 242 Source: People's Justice Case 2013.12

15. Where bank collection factors cause the time of the crime to be extended to the probationary period of a suspended sentence, it shall be found to be a new crime -- the gist of the case in the case of Fang Yi's credit card fraud: Where a convict sentenced to short-term detention and a suspended sentence overdrew his credit card occurred before the judgment of the previous crime, and the bank's collection conditions are met within the probationary period of the suspended sentence, it should be found to be a new crime, the suspended sentence is revoked, and the short-term detention for the previous crime and the fixed-term imprisonment for the later crime are to be combined and enforced separately. Case No.: (2012) Hu Er Zhong Xing Zhong Zi No. 634 Source: People's Justice Case 2013.24

Other references

1. Using a credit card left by another person in an ATM to withdraw money should be found to be credit card fraud -- The gist of Chen's credit card fraud case: The perpetrator found another person's credit card forgotten in the ATM machine and used it, whether he used the existing password to withdraw cash on the spot, or by guessing and matching the password or changing the password and then using it, all of which meet the characteristics of fraudulently using another person's credit card, and the conduct should be found to be a crime of credit card fraud without the need to enter a password. Case No.: (2019) Su 08 Xingzhong No. 81 Source: People's Court Daily May 16, 2019 6th edition

2. The use of overdraft credit cards for production and operation does not constitute the crime of credit card fraud -- Zhang Sheng's credit card fraud case The gist of this case: In the course of using a credit card to consume, the perpetrator has a significant decrease in his ability to repay due to factors such as the market environment, work situation, and family reasons, or the actor fails to repay the loan in a timely manner due to a sudden change in a large amount of overdraft used to deal with urgent matters, it shall be found to be normal use, does not have the purpose of illegal possession, and does not constitute the crime of credit card fraud. Case No.: (2017) Yu 0112 Xingchu No. 702 Source: People's Court Daily Case 6th Edition on October 18, 2018

3. The use of virus programs to steal bank card information and use it constitutes the crime of credit card fraud -- the gist of the case of credit card fraud in Pan et al.: The criminal suspect steals other people's bank card numbers, account names, ID numbers, mobile phone numbers and other information through computer virus programs, and steals the victim's bank card through the Internet, communication terminals, etc., to realize cash, it is a fraudulent use of another person's credit card in a non-magnetic transaction manner, and his conduct constitutes the crime of credit card fraud. Case No.: (2015) Yu Si Zhong Fa Xing Zhong Zi No. 00037 Source: People's Court Daily June 9, 2016 6th edition

Source: Faxin official account transferred from: Judicial Case Research Institute of the Supreme People's Court