Fraud using payment cards - A commentary to the Criminal...

Payment card fraud

(introduced by Federal Law No. 207-FZ of 29.11.2012)

1. Fraud using payment cards, that is, stealing someone else's property, committed using a counterfeit or other credit card, payment or other payment card that is fraudulent by an authorized employee of a credit, trade or other organization -

is punishable by a fine of up to one hundred and twenty thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to one year, or by compulsory labor for up to three hundred and sixty hours, or by correctional labor for up to one year, or restraint of liberty for up to two years, or forced labor for up to two years, or by arrest for up to four months.

2. The same act committed by a group of persons by prior conspiracy, as well as causing significant damage to a citizen,

is punishable by a fine of up to three hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to two years, or by compulsory labor for up to four hundred and eighty hours, or by correctional labor for up to two years, work for a term of up to five years with restriction of freedom for a term of up to one year or without it, or by imprisonment for up to four years with restriction of freedom for a period of up to one year or without it.

3. Acts stipulated by parts one or two of this article, committed by a person using his official position, as well as on a large scale,

is punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to three years, or by forced labor for a period of up to five years, with restraint of liberty for up to two years or without that, or by imprisonment for up to five years with a fine of up to eighty thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to six months, or without it and with restriction of freedom for a term of up to one and half years or without it .

4. Acts stipulated by parts one, two or three of this article, committed by an organized group or on an especially large scale -

is punishable by imprisonment for up to ten years, with a fine of up to one million rubles or in the amount of the wage or other income of the convicted person for a period of up to three years, or without it and with restraint of liberty for up to two years or without such.

1. Fraud using payment cards is a qualified form of fraud. The commission of this criminal act is possible only in the sphere of commodity-money turnover using such a special means of payment as a payment card. Bank payment card - A plastic card attached to one or several bank accounts is used to pay for goods and services, including through the Internet, as well as cash withdrawals. Cards are debit and credit cards. Debit cards are used to manage your own money on a bank account. Credit cards is used to manage the bank's money, which is automatically taken from the bank on credit (they need to be returned to the bank). Card holder - the person in whose name the plastic card is issued. The funds on the card account belong to the card holder. The Bank does not have the right to withhold payment or prohibit their use, except by a court decision, or only can write off commissions on transactions stipulated in the contract. Cardholder is the issuing bank that issued the card, which is fixed by the relevant clauses of the contract for servicing bank cards. The card holder is obliged to return it to the bank at his request within a few days. The cardholder is the person who currently owns the card (in other words, the one in whose hands the card is located, if the card is lost, the owner is any person who picked it up).

Most payment cards have a standard ID-1 format - 85.6 x 53.98 mm and use a magnetic strip as a data carrier, but chip cards are gradually beginning to be used. On the front side of the map can be any image or just a background. In addition, there is a logo of the payment system, the card number, the name of the owner and the validity period of the card. On the back of the card is a magnetic strip, a paper strip with the signature of the owner, and on some - the code or its analog. A bank card can be issued by the bank as a local one (belonging to the local payment system, usually within one state) and international (within the payment system that unites many participating banks around the world); settlement (debit), credit and prepaid. Virtual cards are also issued. The settlement card is intended for the performance of transactions by its holder within the balance of the customer's funds held in his bank account, taking into account the established limits. Cards with a permitted overdraft are a continuation of the development of debit cards, their improved version. The credit card is intended for fulfillment by its holder of transactions, settlements on which are carried out at the expense of funds provided by the credit organization-issuer to the client within the established limit in accordance with the terms of the loan agreement.

2. The disposition of the norm is of a blanket nature, therefore, its application must be preceded by the fact of establishing and analyzing a specific regulatory framework regulating the relations of the parties in the process of using payment cards. The sphere of illegal use of payment cards is a field of special knowledge, therefore, the relevant technical expertise must precede the bringing of charges for the article under review.

3. The object of the analyzed crime - completely coincides with the ancestral object of theft - these are social relations that have developed in the sphere of social security of the population. Like fraud in general, qualified fraud using payment cards is always stealing someone else's property or acquiring the right to someone else's property by deception or abuse of trust (see paragraphs 2 and 3 of the commentary to article 159).

4. The form of the objective side of the deed is strictly limited by the legislator: theft of someone else's property committed using a counterfeit or other credit card, settlement or other payment card, by deceiving an authorized employee of a credit, trade or other organization. Payment card fraud will also occur in cases where the payment card is used in an ATM or other device designed to perform financial transactions using payment cards.

According to the relevant part of the article to be commented, the actions of the guilty are subject to qualification, which was paid by a counterfeit or someone else's payment card on the Internet.

5. A criminal act is considered to be "completed" from the moment the person receives the goods or the amount of money, as well as the acquisition by him of the legal right to dispose of these goods or money.

6. The mere fact that a person submits a counterfeit or someone else's payment card, depending on the circumstances of the case, may contain signs of preparation for this type of fraud.

7. Subject is any capable person who has reached the age of 16.

8. The subjective side - direct specified intent. The use of a fake card, as well as the use of a fake card, indicate the existence of intent aimed at fraud when receiving payments someone else's payment card against the will of her legitimate owner.

9. Fraud committed by the culprit with the use of a payment card forged by him, which grants the right to receive goods, money and services, is qualified for the totality of crimes provided for by Part 1 of Art. 327 CC and the corresponding part of the article being commented.

10. If the forged payment card for reasons beyond his control could not use it, the deed is qualified under Part 1 of Art. 327 and part 1 of Art. 30 of the Criminal Code, part 4 of the article as an article as preparation for fraud using payment cards.

11. If a person forged a credit card for fraud, used it for this purpose, but for reasons beyond his control, he could not withdraw the property or money of the victim or acquire the right to other people's property or money, the deed is qualified as a set of crimes provided for by Part 1 of Art. 327, as well as part 3 of Art. 30 of the Criminal Code and, depending on the circumstances of the case, the relevant part of the article being commented.

12. Fraud committed with the use of a counterfeit payment card made by another person is fully covered by the offense set forth in the article under review, and does not require additional qualification under art. 327 of the Criminal Code.

13. The law provides for a qualified composition of fraud using payment cards: committed by a group of persons by prior conspiracy, involving significant damage to a citizen (Part 2), and specially qualified elements of the crime : first, the acts committed with using the guilty of their official position, as well as in a large amount (Part 3); secondly, acts committed by an organized group or in an especially large amount (Part 4).

16. With regard to qualifying signs - causing significant damage to a citizen, a group of persons by prior conspiracy, the use by the perpetrators of their official position, organized group of persons, large size and especially large size - see comments. to art. 35, 159.

17. According to Notes, to Art. 1591 UK large size in the commented article is the value of the stolen property - 1 million 500 thousand rubles, an especially large amount - 6 million rubles.

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