【作者】 张学成；

【导师】 徐岱；

【作者基本信息】 吉林大学 ， 法律， 2007， 硕士

【摘要】 信用卡诈骗罪作为一种较为新型的金融诈骗犯罪,在具体认定上争议问题很多。本文对信用卡诈骗罪在理论上和实践中存在的诸多疑难问题进行了深入的探讨。笔者将信用卡诈骗罪的法定行为方式分为使用型信用卡诈骗、冒用型信用卡诈骗和恶意透支型信用卡诈骗三种类型而分别加以分析;提出盗窃信用卡并使用不应按照盗窃罪一概而论,而应考虑到是否得到密码的情况而分别认定;认为拾到信用卡并使用、利用网络进行信用卡诈骗均应认定为信用卡诈骗罪。在认定信用卡罪既遂、未遂的问题上,笔者同意“占有说”,即以行为人是否获得对他人财物的实际控制为标准来认定是既遂还是未遂;对于信用卡诈骗罪的共犯问题,当无身份者与有身份者勾结共同实施信用卡诈骗行为时,笔者主张“主要客体说”,对共同犯罪性质的认定不能拘泥于某一方面,而应从共同犯罪人的共同行为中考察其性质。更多还原

【Abstract】 Credit card is a product of the times. It is increasingly favored by consumers because it is the advanced method of settlement and payment and innovative mean of consuming. Nowadays the credit card has become the passport for people in modern life. With the dissemination of the use of credit card, the business for credit card is developing extraordinarily. However, due to its own characteristics, the development of the credit card market is a course of battle against credit card crime. As a new type of economic crime in the commodity economy, the forms of the credit card fraud are very complicated and are also involved with intelligent features. So it is a very practical problem facing us that how to precisely specify the credit card fraud.This paper consists of three chapters:The first chapter mainly deals with the recognition of the legal acts of the credit card fraud. According to the Article 196 of Criminal Law and the AmendmentⅤ, this paper classifies of the legal acts of the credit card fraud into three forms: use of credit card fraud, fraudulent use of credit card and Malicious Overdraft credit card fraud. The first section of this chapter mainly analyzes the use of credit card fraud, including the use of counterfeit credit card, invalid credit card, using false identity to get credit card, reaffirming the definition of“use”, confirming the difference between of counterfeit credit card and invalid credit card. The analysis focused on the use of a false identity I. D to get credit cards I. D to get credit cards and that the identity of I. D to get credit card crime is not identified as the same. The second section analyzes the definition, precondition and situation of fraudulent use of credit card and the understanding of other people’s credit card, classifying the stolen using as fraudulent use of credit card, pointing out that the stolen using is the use of other people’s credit card secretly, but the card being used is not stolen by the user, not belonging to the act of“using the credit card by stealing”, and should not be adapted to the Article 196 Section 3. Section three analyzes malicious overdraft type of credit card fraud, for a correct understanding of overdrafts, tables will be allocated in the form of text classification of the facility will help us to identify malicious acts overdrafts; from the perspective of formation of crime, detailed analyzing the overdraft credit card fraud.The second chapter analyzes other difficult issues often encountered in the judicial practice of credit card fraud. In the first section, the analysis of stealing a credit card and using it, that the use of passwords, credit-card theft because of the different circumstances there should be differentially treated, thus after stealing a credit card without the use of passwords and credit card fraud are consistent with the elements Also coordination with the Criminal Code, to be convicted of credit card fraud; but with the theft of credit card and the password, the paper points out that credit card is equivalent to be modified to control the funds in the credit card. Then legitimate cardholder’s property will be faced with the danger of being seriously damaged. If it is deemed as crime of theft, the behavior can be identified in advance, that the perpetrators of the acts will soon begin to implement the theft of credit card theft and criminal behavior began to implement the act. The later use of the credit card is the behavior of turning property rights into concrete acts of funds. To put the negative assessment of the Criminal Law ahead can effectively fight against such a serious social harm behavior. In section two, of a credit card and using it, I believe that regardless of whether passwords, credit card fraud constituted. With the increasing maturity of the computer networking technology, in particular the broadband network, people increasingly rely on computer networks, which will inevitably leads to security issues more and more on the use of credit cards on the network. Section III is devoted to an analysis of the writer using the Internet credit card fraud. Although it has secret network access features, its essence is still credit card fraud because of the importation of credit card accounts on the network, users with passwords signed. Credit card fraud should not be limited to "suffering"; Electronic funds can be used as a criminal target property crime.Chapter three mainly discusses the completion of credit card fraud, attempted and common crime. The basic criterion for distinguishing the completion and attempted credit card fraud is whether the offense acts concur with all the elements of the Criminal Law provisions. As to the consequential crime, it is determined by whether the crime results are produced. Fraud is a consequential crime. Only the victim referred to a property because of the fraud acts, and the perpetrator actually possesses the property that the penal provisions can be considered to be a crime. Meanwhile briefly analyzes the influences of the amount of the crime to the attempting of fraud. As amount crime and consequential crime, the social defects of the credit card id determined by the amount and the consequences. Therefore, if it is attempted, but the circumstances are very serious, it is convicted as credit card fraud too. As to the issue of how to judge whether the circumstances are serious or not, it can be judged according to the crime of theft, e.g., the amounts get to 5000RMB or below but serious. The second section discusses the common crime of credit card fraud, specifying the nature of credit card fraud committed jointly by people of different positions, advocating "main object theory", namely common crime is a complex organic whole, internally including many factors influencing the harmfulness. Therefore, the determination of the nature of common crime should not be confined to one aspect, but to see its nature from the common actions of the common crime.更多还原