Article 7

In violation of state regulations, paying cash directly to credit card holders by means of fictitious transactions, false pricing, cash return, etc. by means of point-of-sale terminal equipment (POS machines). If the circumstances are serious, he shall be convicted and punished for the crime of illegal business operation in accordance with the provisions of Article 225 of the Criminal Law.

If the amount of the act mentioned in the preceding paragraph is more than 6,543.8+0,000 yuan, or the funds of financial institutions are overdue by more than 200,000 yuan, or the economic losses of financial institutions are more than 6,543.8+0,000 yuan, it shall be deemed as "serious circumstances" as stipulated in Article 225 of the Criminal Law; If the amount is more than 5 million yuan, or the funds of financial institutions are not returned more than 6.5438+0 million yuan within the time limit, or the economic losses of financial institutions are more than 500,000 yuan, it shall be deemed as "the circumstances are particularly serious" as stipulated in Article 225 of the Criminal Law.

If the cardholder maliciously overdraws in the above way for the purpose of illegal possession and should be investigated for criminal responsibility, he shall be convicted and punished for credit card fraud in accordance with the provisions of Article 196 of the Criminal Law.

-Explanations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Impairment of Credit Card Management (No.65438+Law Interpretation [2009] of February 3, 200919).

Reference Cases of Criminal Trial in the Supreme People's Court

Zhang Hongbiao and other illegal business cases (Criminal Trial Reference Guiding Case No.863)

Referee's summary: 1. Is the amount of cash withdrawn by the actor for himself or the credit card actually controlled included in the crime of illegal business operation?

2. How to calculate the amount of illegal business if the cash collected last time is returned with the cash collected next time?

3. Knowing that others illegally cashed out their credit cards and borrowed POS machines, is the amount cashed out by the perpetrator during the free lending period included in the crime amount?

4. Is the amount of illegal cash-out for the lessor included in the crime amount for the actor who rents the POS machine to engage in illegal cash-out?

This case is a credit card cashing case with the defendant Zhang Hongbiao as the core of the gang, and there are many people involved. In the process of cashing out, the defendants have various complicated situations, such as cashing out for themselves, robbing Peter to pay Paul, renting out to others for free, cashing out for the lessor for free after renting out, which makes it difficult for the people's court to accurately determine the nature of the behavior and the amount of illegal business.

(1) The actor withdraws cash for himself or the credit card actually controlled, and if the circumstances are serious, it constitutes the crime of illegal business operation, and the amount of cash withdrawn shall be punished as the crime of illegal business operation.

During the trial of this case, some people think that the "operation" in the crime of illegal operation refers to the supply and marketing of enterprises in the traditional sense, and the relationship between supply and marketing includes the operator and the relative person, which is a kind of interpersonal relationship. Special merchants swipe their cards on their POS machines, and only one party is the main body, which does not belong to the category of external "management".

We believe that we should accurately understand the essence of the crime of illegal business operation of credit card cashing. Article 7 of the Interpretation issued on 12 and 16 in 2009 stipulates: "Whoever, in violation of state regulations, directly pays cash to credit card holders by means of fictitious transactions, false pricing or cash return, if the circumstances are serious, shall be convicted and punished for the crime of illegal business operation in accordance with the provisions of Article 225 of the Criminal Law. From the above provisions, we can analyze the essential characteristics of the crime of illegal business operation of credit card cashing from the following aspects. First of all, from an objective point of view, the crime of illegal business operation of credit card cashing regulates the behavior of the actor paying cash directly to the "credit card holder" without real transaction background, and the object is the credit card holder, but it does not prohibit the actor from competing with the cardholder. When a special merchant swipes a card with his own or actually controlled credit card, the actor has two overlapping subject identities, one is the special merchant and the other is the representative of the cardholder. In its fictional trading behavior, the actor plays the role of both parties to the transaction. Secondly, from the analysis of the infringed legal interests, the reason why the credit card cashing behavior constitutes the crime of illegal business operation is because the actor converts the credit line of the credit card into cash in disguise without real commodity trading, thus making the funds of financial institutions in a high-risk state, seriously disrupting the national financial management order. In this case, the three defendants used their own or actually controlled credit cards to withdraw cash from their POS machines, which actually put bank funds in a high-risk state and violated the normal financial market order protected by the state for the crime of illegal business operation. Thirdly, the normative, guiding and educational function of the crime of illegal business operation is that to engage in a certain business, one should obtain the qualification of business license in advance in accordance with state regulations, or abide by the specific rules of a particular industry. If the actor fails to obtain the relevant license or violates the specific rules of a specific industry, it shall be deemed as illegal business operation, and if the circumstances are serious, it may constitute the crime of illegal business operation as stipulated in Article 225 of the Criminal Law. The purpose of the actor's application for POS machine is to cash out the credit card. Whether you swipe your card for others or yourself, it violates the specific industry rules that do not allow fictitious transactions, which seriously disrupts the financial management order. Therefore, whether a special merchant cashes in for others or for himself, it belongs to the illegal business behavior stipulated in Article 225 of the Criminal Law, and this illegal cash-out behavior cannot be excluded from the adjustment of the Criminal Law, because the identities of the special merchant and the cardholder coincide.

Since cashing out a credit card for oneself or actual control is a crime of illegal business operation, and the circumstances are serious, the amount cashed out in both cases should be included in the amount of illegal business operation crime. The view put forward by Ni Zheng's defender that the amount of credit card cashing actually controlled by Ni Zheng should not be included in the amount of illegal business operation crime cannot be established.

(2) If the next cash withdrawal is used to return the last cash withdrawal, the accumulated amount is illegal business.

In this case, Ni Zheng and others, in order not to reduce the credibility of credit cards and facilitate the continued cashing, took the method of robbing Peter to pay Paul from other credit cards before the repayment date of one credit card expired, thus causing rolling cashing. Some people think that when calculating the crime amount of such cash-out behavior, the funds occupied by banks (that is, "funds") should be taken as the benchmark. Both the crime of fraud and the crime of misappropriating public funds are based on "number" to determine the amount of crime. For example, Article 9 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases (now abolished) clearly stipulates: "If the property of the next fraud is returned to the property of the last fraud after repeated fraud, the amount returned before the crime shall be deducted and determined according to the actual amount that has not been returned. When sentencing, the amount of multiple frauds can be considered as an aggravating circumstance. " Article 4 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Misappropriation of Public Funds stipulates: "..... misappropriate public funds for many times, and return the previous misappropriated public funds. The amount of misappropriation of public funds is determined by the actual amount that has not been returned at the time of the crime. "

We believe that if the next cash withdrawal is used to return the last cash withdrawal, the illegal business amount should be accumulated. First of all, the main object of fraud and misappropriation crime is property ownership. If the object of misappropriation is public funds, the crime of misappropriation also violates the integrity of duty behavior. Therefore, the property loss of the victim or the injured unit is often one of the main factors to measure the severity of the crime. This is the principle that the relevant judicial interpretation combines the subjective and objective factors of the actor and takes the actual amount that has not been refunded as the standard for determining the amount of crime. As one of the main crimes of disrupting the market order, the crime of illegal business operation is mainly reflected in seriously disrupting the normal market order, not just the capital security of financial institutions. Similar to insider trading, when operating the securities and futures market, the number of transactions and the amount of transactions of the actors themselves reflect the seriousness of the behavior that disturbs the market economic order. The false transactions created by cash-out behavior make the economic aggregate artificially high, and may also lead to false economic statistics and false economic prosperity, thus misleading economic decision-making. In this case, Zhang Hongbiao illegally cashed out 22.5 million yuan in a short period of about 15 months, which caused a false enlargement of the total amount of credit card transactions and had a serious negative impact on the macroeconomic order of the market. If the "principal amount" is taken as the crime amount, the cash amount returned by the operator cannot be regarded as a crime, which will inevitably deviate from the original intention of the crime of illegal business operation. Secondly, judging from the conviction standard, it should also be cumulative calculation. Considering that the amount of cash-out transactions may not directly reflect the degree of harm to the financial security of financial institutions, the Interpretation stipulates that the conviction criteria for illegal cash-out of credit cards are three: the amount of cash-out transactions by merchants, the amount of overdue funds of financial institutions, and the amount of economic losses caused by financial institutions. From the analysis of this clause, as far as the first item is concerned, it objectively refers to the actual amount of cash transactions. Therefore, in the case of cashing out before returning in the future, the cashing amount should be calculated cumulatively.

(three) knowing that others borrow POS machines for illegal cash, the amount of cash during the free lending period shall be included in the amount of illegal business crimes.

Zhang Hongbiao's defender suggested that the amount of cash lent by Zhang Hongbiao to Ni Zheng and others for free should be deducted from the total amount of crimes.

We believe that even if someone borrows a POS machine to cash out illegally, the amount cashed out by others during the period of free lending should also be included in the amount of illegal business operation. First of all, as an accessory in a joint crime, one should bear full responsibility for the joint crime. In this case, in addition to his own illegal cash-out behavior, Zhang Hongbiao rented his POS machine to others in violation of the relevant regulations of UnionPay company, knowing that others rented his POS machine to engage in illegal cash-out activities, and provided personal seals, special financial seals, blank checks, etc. In this case, although he did not carry out direct illegal business operations, he provided Ni Zheng and others with the key equipment for the success of this kind of crime and belonged to an accomplice in a joint crime. Aiding crime refers to a person who does not directly participate in the crime in a joint crime, but provides help to the perpetrator, facilitates his crime or urges him to complete the crime. The behavior of helping is usually manifested in providing criminal tools, pointing out the criminal target, checking the crime location, removing criminal obstacles, and conspiring in advance to hide criminals, eliminate criminal traces, harbor stolen goods, and help to commit crimes. According to the theory of "taking full responsibility for some behaviors" in joint crime, Zhang Hongbiao should bear corresponding legal responsibility for the amount cashed out in the process of providing POS machines. Secondly, the constitution of the crime of illegal business operation does not require making profits. Credit card cashing constitutes the crime of illegal business operation, which must meet the following conditions: first, the behavior violates state regulations; The second is to use POS machines to fabricate transactions and other methods; The third is to pay cash directly to credit card holders; Fourth, the behavior has reached a serious level. Whether the actor aims at making profits or not, and whether he finally gets benefits, does not affect the establishment of this crime. Therefore, Zhang Hongbiao provided a criminal tool for others to cash out illegal credit cards. Whether to pay or not does not affect the determination of the amount of crime.

(4) The amount illegally cashed out by the actor for the cardholder as lessor shall be included in the amount of the crime of illegal business operation.

As a special merchant, whether cashing for others or cashing for yourself, the cash amount should be included in the crime amount. On the premise of this principle, if the actor is the lessor of the POS machine and the cardholder is the lessor, there are differences in the trial whether the amount illegally cashed out by the cardholder as the lessor should be included in the crime of illegal business operation. Ni Zheng's defender suggested that since the POS machine was rented by Ni Zheng from Zhang Hongbiao, the amount that Zhang Hongbiao cashed out during Ni Zheng's use of the POS machine should be deducted from the total amount of crimes. In our opinion, this opinion cannot be established. First of all, Ni Zheng's behavior of taking cash conforms to the constitutive requirements of this crime. Relevant laws and judicial interpretations have no special restrictions on the subject of this crime, that is, you don't have to be a special businessman to become the subject of this crime. Ni Zheng violated state regulations, even if renting a POS machine as the lessor of the POS machine, that is, the credit card holder Zhang Hongbiao cashed in, if the circumstances were serious, his behavior also constituted the crime of illegal business operation. Secondly, as the actual controller and beneficiary of the POS machine, it should be responsible for the total cash during the use period. Although Ni Zheng is not the owner of the POS machine, he is the actual controller and personally operates to collect cash for Zhang Hongbiao. Although Zhang Hongbiao is a cardholder and Ni Zheng doesn't charge cash handling fees, it seems that there is no direct economic benefit, but there are still potential and alternative benefits, such as Zhang Hongbiao exempting part of the rental fee, and Zhang Hongbiao arranging the lessee to change the POS machine to avoid supervision and other forms of benefits. Moreover, the reason why Ni Zheng doesn't charge the handling fee, whether it is agreed by both parties or voluntarily exempted, is an integral part of his illegal business operation, and whether he makes a profit or not does not affect the determination of the crime of illegal business operation. Therefore, Ni Zheng should bear criminal responsibility for all the activities during his use of POS machines. Of course, in this case, Zhang Hongbiao, as an accomplice of Ni Zheng's illegal business operation, should also bear criminal responsibility for the amount cashed out as a cardholder.

-Criminal Trial Reference, episode 3, 20 13 (92 episodes)