Lawyer Dai said: Overdrawing the "intellectual property" of Guangfa Bank does not constitute the crime of credit card fraud. When an illegal collection agency fabricates or misinterprets the legal provisions, confuses the amount owed by "intellectual property" with the credit card principal, and threatens you with "malicious overdraft" in Article 196 of the Criminal Law on the grounds of "suspected credit card fraud", pick up the legal weapon given by lawyer Dai and hit you head-on!
CGB's "intellectual capital" business covers a wide range.
I believe that many credit card holders of Guangfa Bank are familiar with the "intellectual capital" business. This kind of business uses credit cards to link with savings cards. After the credit card holder opens this business, Guangfa Bank will issue cash to his savings card in one lump sum according to the cardholder's comprehensive credit, which can be repaid in installments. But this money does not occupy the cardholder's credit card limit, sometimes this limit is several times the credit card limit. The intellectual property business of Guangfa Bank has been well received since its launch.
However, the unclear and one-sided introduction of CGB's intellectual property business makes the definition of its nature vague in judicial practice, which makes it difficult to unify the judicial determination and application standards for the nature of intellectual property and whether users will incur criminal responsibility after overdraft. However, according to the summary and analysis of judicial practice in recent years, we can clearly judge that overdraft of "intellectual property rights" does not constitute the crime of credit card fraud.
according to lawyer Dai's judicial summary of intellectual property products of guangfa bank, in judicial practice, "intellectual property" products have been popularized and used since 26. As for the litigation cases caused by the failure of the business applicant to return the "universal property" after being collected by the bank, according to the statistics of the judgment document network, there are more than 1, civil judgments and 48 related criminal judgments, and the proportion of criminal judgments is 4.8%.
Since 217, the Tongzhou District People's Court of Beijing has determined that "intellectual property" is a cash installment business attached to credit cards, and its essence is still a civil loan, and the corresponding unpaid amount is not included in the amount of credit card fraud. Until December 1, 218, Article 11 of the Decision of the Supreme People's Court and the Supreme People's Procuratorate on Amending the Interpretation of Several Issues Concerning the Specific Use of Laws in Handling Criminal Cases of Impairment of Credit Card Management: "The card-issuing bank illegally issues loans in the form of credit card overdraft in disguise, and if the cardholder fails to repay in accordance with the regulations, Article 196 of the Criminal Law' malicious overdraft' shall not apply. Those who constitute other crimes shall be punished for other crimes. " In the judicial practice of credit card cases, at this stage, it has been done to explain to the banking industry that its business and products are not lenient at will, and it is necessary to clarify legislation and efficient justice to safeguard the due interests of the banking industry. Practice has achieved a neutral and fair attitude of safeguarding the rights and interests of users and the banking industry.
Therefore, regarding the attributes of "intellectual property" products, Mr. Dai made the following three summaries:
According to the first-instance judgment (218) made by Huicheng District People's Court of Huizhou City on the credit card fraud case of restaurant operator Zhang, Zhang's subjective view is that the bank's payment of intellectual property rights is recognition of his repayment ability, and objectively, Zhang's overdraft of intellectual property rights is an equal civil subject relationship, so Zhang's overdraft of intellectual property rights does not meet the constitutive requirements of credit card fraud.
this case is very representative, please be sure to read it through.
(This case focuses on the judgment of Huicheng District People's Court in the first instance of retrial: Zhang's overdraft intellectual property does not meet the constitutive requirements of the crime of credit card fraud), which is required reading! Must read! Must read!
Zhang, male, born on September 25th, 1983, Han nationality, college degree, lives in Huicheng District, Huizhou City, Guangdong Province. Zhang and his cousin run a small restaurant together, mainly engaged in morning tea and night market business. Because the food is excellent and the price is moderate, the word of mouth has been well received by the surrounding residents. Although the facade is not big, the channel switching rate is high and the profit is quite rich.
After the college entrance examination, Zhang's nephew decided to study in Canada, while his cousin and sister-in-law also decided to go abroad to accompany them and emigrate. Therefore
So, after cashing out 8, yuan of credit card, Zhang withdrew 12, yuan of intellectual capital and paid it to his cousin with the funds raised from other relatives and friends, and bought shares in full.
In the past, the purchasing and kitchen of restaurants were managed by their cousins, so they have been able to control the cost of dishes and ensure the quality of output. After my cousin withdrew, Zhang handed it over to the chef, and problems began to appear in management. At first, old customers complained a little, but later, because of the continuous decline in quality, many customers were lost and business plummeted.
due to business problems, Zhang is fidgeting, while the cost of the restaurant is rising and the profit is declining. Therefore, the money that could have been paid back on time began to have problems. In order to maintain the credibility between relatives and friends, Zhang decided to give priority to other relatives in the monthly profit, and the credit card always paid the minimum repayment amount. Finally, Zhang's economic situation continued to deteriorate, and the credit card principal and "intellectual capital" could not be repaid.
the credit card of guangfa bank under Zhang's name still has a principal of 83,86.89 yuan and "intellectual capital" of 7,.5 yuan, and interest, liquidated damages and installment fees of 43,993.6 yuan, totaling 197,8 yuan, which cannot be repaid. Due to the large amount of arrears, Guangfa Bank refused to repay after repeated collection, and reported the case to the local public security organ.
Zhang was criminally detained by Huicheng Branch of Huizhou Public Security Bureau for the crime of credit card fraud. Afterwards, Huicheng District People's Procuratorate decided to release him on bail pending trial. Houhuicheng District People's Court arrested him according to law and detained him in Huizhou Detention Center.
The Huicheng District People's Court of Huizhou City held that the defendant Zhang had maliciously overdrawn in the process of using the credit card, but he still refused to repay the money after being collected by the issuing bank, and his behavior constituted the crime of credit card fraud.
The people's procuratorate of Huicheng District of Huizhou City accused the defendant Zhang Moumou of criminal facts and charges, and our court supported them;
according to the facts, nature and circumstances of the crime committed by the defendant and the degree of harm to society, the defendant Zhang was sentenced to five years' imprisonment and fined in accordance with the provisions of Item 4, Item 2, Article 52, Article 53 and Item 3 of Article 67 of the Criminal Law of the People's Republic of China.
> Zhang refused to accept the judgment and appealed to Huizhou Intermediate People's Court. Zhang believes that financial intelligence is a loan, and it is doubtful to calculate the total penalty by combining with the overdraft credit card principal, which belongs to unclear facts and requests a revision or retrial.
Huizhou Intermediate People's Court held that the facts in the original judgment were unclear and the evidence was insufficient. According to the provisions of Item (3) of Paragraph 1 of Article 225 of the Criminal Procedure Law of the People's Republic of China, it ruled as follows:
(1) The People's Court of Huicheng District, Huizhou City, Guangdong Province (217) No.1 * * 6 at the beginning of sentence 1*2 was revoked.
(2) sent back to the people's court of huicheng district, Huizhou city, Guangdong province for retrial.
According to the request of the Intermediate People's Court to retry the case of Zhang's credit card fraud, the Huicheng District People's Court of Huizhou City re-examined the reasons for the accusation put forward by the public prosecution agency, fully listened to the defense opinions of the appellant Zhang's defender, and at the same time re-examined and combed all the evidence involved in this case.
The public prosecution agency believes that the credit card principal and the financial intelligence fund should both belong to the credit card overdraft amount and should be calculated together. Therefore, the public prosecution agency believes that the defendant Zhang maliciously overdrawn RMB 153,86.94, which is huge, and his behavior violated the provisions of Article 196 of the Criminal Law of the People's Republic of China. The criminal facts are clear and the evidence is true and sufficient, so he should be investigated for criminal responsibility for credit card fraud. According to Article 172 of the Criminal Procedure Law of the People's Republic of China, if a public prosecution is initiated, please sentence it according to law.
Defendant Zhang objected to the charge of credit card fraud by the public prosecution agency and pleaded not guilty. It argued that it had negotiated repayment with the bank, and the bank took the initiative to invite it to repay. After that, Zhang took the initiative to repay more than 7, yuan as agreed. Defendant Zhang believes that financial intelligence is a general loan, not a credit card loan.
Defender of defendant Zhang believes that defendant Zhang does not constitute the crime of credit card fraud, and should not be convicted and sentenced for it. The reasons are as follows:
First, for the fact that Zhang defaulted on the credit card principal of 83,86.89 yuan and did not return it, because Zhang subjectively did not have the purpose of illegal possession, his behavior did not meet the elements of the crime of credit card fraud, so the defender believed that defendant Zhang did not constitute the crime of credit card fraud.
The specific reasons are as follows:
Although the defendant Zhang refused to return it for more than 3 months after being urged twice by the issuing bank. However,
the defendant's various behaviors can fully reflect that he did not have malicious overdraft behavior in the process of handling and using the credit card, and he did not have the purpose of illegal possession.
Therefore, the defender believes that the defendant Zhang's behavior is only a bona fide card use behavior, which is due to the need of capital turnover, and he has a certain willingness to repay from beginning to end. The defendant did not evade repayment, and actively contacted the issuing bank to discuss repayment matters. His behavior did not meet the "illegal possession purpose" required by "malicious overdraft" and did not meet the criminal elements of the crime of credit card fraud. Therefore, the defender believes that the defendant Zhang did not constitute a crime.
Secondly, due to the fact that Zhang handled the "financial intelligence fund" of Guangfa Bank and defaulted on the principal of 7,.5 yuan, the defender believes that the arrears belong to ordinary civil financial lending in law, which does not belong to the act of "overdraft credit card" and does not constitute the crime of credit card fraud.
There is an essential difference between using "financial funds" and "credit card overdraft". In fact, "financial intelligence" is an unsecured and unsecured financial loan promoted by Guangfa Bank for old customers with good credit. Because it is unsecured and unsecured, it has similarities with credit card overdraft, but there are essential differences between them. Defenders believe that the essence of "financial intelligence" business does not belong to conventional credit card overdraft consumption. The analysis is as follows:
In summary, it can be seen that "financial intelligence" is different from credit card overdraft. The "financial intelligence fund" is an ordinary financial loan, which does not meet the characteristics of "overdraft" or the objective elements of "malicious overdraft" in the crime of credit card fraud.
Third, even if the court finds that the defendant Zhang constitutes a crime, Zhang has a lighter or mitigated punishment, and requests the court to consider it according to law.
Zhang's first confession:
On July 23, 27, I applied for a credit card with the card number of 52×××× 25 at Guangfa Bank, No.19 Xiapu Road, Huicheng District, Huizhou City. At the beginning, the credit line was 18, yuan, and later the credit line was raised to 8, yuan. The cash of its overdraft credit card is RMB 8, (the specific total overdraft consumption needs to be inquired by the bank), and it has been repaid since the overdraft consumption, but it was not repaid to the bank on time due to problems in the bankruptcy economy of the company. Its last repayment was 3, yuan, and it has not been repaid since. The cash of its overdraft credit card is used for business turnover and living expenses.
Zhang's second confession:
I remember that I overdrawn the principal of Guangfa Bank's credit card by RMB 8,, and I also handled the financial fund in Guangfa Bank, which overdrawn the principal by RMB 7,.
Cross-examination of Shen Mou Mine:
In November 216, Zhang was entrusted by Zhang to negotiate with the credit card debt owed by Zhang to Guangfa Bank. At that time, the negotiation situation was that it could be reduced to more than 19, yuan, but it needed a one-time repayment, and he fed back the information to Zhang, but at that time, Zhang said that he did not have the ability to repay in one time;
Witness Lai Mohong's cross-examination:
I communicated with Zhang through an intermediary to discuss the purchase of Zhang's property at Room *, 4th floor, Unit *, Maji Xinmin Village, Henan Sub-district Office, Huicheng District, Huizhou City. At that time, Zhang said that his loan was about to expire, and he was in a hurry to pay back the loan with the house payment. However, because the house is a fund-raising house, it is not conducive to handling mortgage loans, and it was not until the end of 216 that the bank approved the funds.
This is the most important part of this case, so please read it carefully.
The Huicheng District People's Court of Huizhou City held that the defendant Zhang maliciously overdrawn RMB 83,86.89, which was a large amount, and his behavior constituted the crime of credit card fraud. The public prosecutor accused the defendant Zhang of committing the crime of credit card fraud. The facts were clear, the evidence was true and sufficient, and the charges were established. Defendant Zhang did not plead guilty at the trial, but he submitted a "repentance book" to our court after the trial, indicating that he pleaded guilty and repented, and had repaid RMB 197,8. The remaining amount was reduced and dealt with by the issuing bank, and he was given a lighter punishment.
On the issue that the public prosecution accused the defendant Zhang of maliciously overdrawing the "financial intelligence fund" of RMB 7,.5.
after investigation, Caizhijin is an overdraft transfer installment repayment service launched by Guangfa Bank, which means that the bank deducts a sum of cash not exceeding its comprehensive credit line from its credit card through overdraft transfer and transfers it to the domestic bank savings account with the same name designated by the cardholder, and the customer repays the principal and handling fee in installments.
The analysis on whether the money constitutes a crime is as follows:
Defender of defendant Zhang put forward the defense opinion that Zhang defaulted on the credit card principal of 83,86.89 yuan and did not return it, because Zhang subjectively did not have the purpose of illegal possession, and his behavior did not meet the criminal elements of credit card fraud, and defendant Zhang did not constitute the crime of credit card fraud.
The analysis of whether the defendant Zhang's overdraft of the credit card principal of 83,86.89 yuan constitutes a crime is as follows:
Regarding the defendant Zhang's defender's suggestion that the defendant Zhang owed the "Finance Gold" principal of 7,.5 yuan to Guangfa Bank, it is not an "overdraft credit card" behavior, nor does it constitute a crime of credit card fraud; As well as the defense opinion that the defendant Zhang overdrawn the credit card principal of 83,86.89 yuan, after the public security organ filed a case and before the prosecution organ filed a lawsuit, all the principal in arrears had been returned, and the rest amount had been reduced by Guangfa Bank, which could be given a light sentence according to law, which was consistent with the facts ascertained in this case and was adopted.
other defense opinions are inconsistent with the facts ascertained in this case and will not be adopted.
according to the provisions of item 4, paragraph 1, Article 196 of the Criminal Law of the People's Republic of China, Articles 52, 53 and 64, the verdict is as follows:
Defendant Zhang was convicted of credit card fraud, sentenced to one year's imprisonment and fined 2, yuan (the fine shall be paid to our court in one lump sum and turned over to the state treasury within one month from the effective date of this judgment). Related questions and answers: What should I do if Guangfa Caizhijin can't afford it?
1. Negotiate repayment: Guangfa Caizhijin can take the initiative to contact the customer service of Guangfa Caizhijin to apply for negotiated repayment, explain the reasons for negotiated repayment, and guarantee that it will be repaid according to the new repayment plan, and the general customer service will agree.
2. Borrowing money for repayment: CGB Finance can borrow money from friends and relatives around it. First, solve the repayment crisis to ensure that it will not be overdue, and then repay the money to friends and relatives after this time.
3. It should be noted, however, that Guangfa Caizhijin's application for negotiated repayment needs to be reviewed, and repayment can only be made according to the new repayment method if it is approved. Related Q&A: Is Guangfa's "Financial Wisdom" a bluff?
financial intelligence, not fooling people, but interest and quota.