On 24 may 2011, the suspect, sun ho, processed a credit card with a credit line of $200,000 at the bank. On 8 may 2012, sun tsai used this credit card to illegally cash out rmb 200,000 on a company's pos machine. Since 2013, the bank has made numerous collections of arrears to sun tsai, but, owing to the large amount of outstanding credit card, it has been unable to repay them and, as at 31 december 2013, his credit card account was in arrears of over $260,000. Upon being called to the police, a police station, after having received a police report, found out the circumstances of the case and arrested the suspect, sun. Eventually, sun was convicted of credit card fraud。
Counsel
Lawyer lu yong, the law firm of heung-chang: under our criminal law, malicious overdraft constitutes credit card fraud. The so-called malicious overdraft is an act by which the holder of the card, for the purpose of illegal possession, exceeds a prescribed limit or period of overdraft and is not returned after collection by the issuing bank。
In the judicial interpretation, two restrictions were added to the term “moral overdraft”, namely, two reminders from the issuing bank and the failure to return the amounts owed for more than three months. This precludes the failure to return on time because of the absence of a reminder from the bank or other reminder instrument. If the holder has not received the relevant notification or documents and has not been returned for a certain period of time, it is not a “moral overdraft”。
Since credit card fraud offences, such as “colour overdraft”, are intentional offences, they have subjectively the purpose of unlawful possession, which is a very important constituent element of the offence. “illicit possession” is one of the main lines of the distinction between “wrong overdraft” and “good-faith overdraft”, which constitutes an offence only if there is an overdraft “for illegal possession”。
In the judicial interpretation, the combination of “illegal occupation” and recent judicial practice is given six situations, such as the non-return of substantial overdrafts in the knowledge that they cannot be repaid; the non-refundance of excessive overdrafts; and the concealment of overdrafts, changes in communications and evasion of financial institutions. These are manifestations of “illegal occupation”。
In the light of the above, sun tsi illegally cashed the renminbi with credit cards and the failure to pay was a malicious overdraft and constituted a credit fraud offence。
